The new Article 47 of the Rules of the Court
Since 1 January 2014, date of entry into force of the new Article 47 of the rules of the Court, the conditions for accessing the Court are much stricter.
The new provisions are based in part on recommendations contained in the report by Lord Woolf on the review of the working methods of the Court, adopted in December 2005 (§ 9.1.1 of the Annex): “The Court should amend Article 47(5) of its rules to clarify what constitutes an application” and “The amended Rule should make clear that there is no application until the receipt by the Court of a completed application form.”
These new provisions provide further evidence of the creativity of the Court, but in an area which had remained largely preserved so far. They reflect both the intention to define the concept of an application before the Court and the desire to control the volume of litigation. Without, of course, modifying the Convention, these provisions place strict limits on the right of individual petition, a cornerstone of the European system of protection of human rights.
Should an application be assigned to a judicial formation or be rejected without being considered by the Court? This is a crucial question regarding the improvement of the efficiency of the Court as well as expediting the review of applications. The new Article 47 seeks to respond to this question by introducing major changes, however it also raises practical difficulties.
The Key Changes
Without a doubt, the procedure of referral to the Court has been profoundly changed in many ways, which has the effect of increasing the burden on applicants and their representatives while alleviating that of the Registry.
The first and most notable change concerns the requirement to submit the application using the form provided by the Registry and available on the Court’s website. As such, gone are the days – those of the Commission prior to the entry into force of Protocol No. 11 and those of the ‘new’ Court afterward - when it was sufficient to simply send a letter to Strasbourg. Thus, the new Article 47 brings to an end a practice observed for almost six decades.
The second change relates to the format of the application. The facts and complaints must be stated in the space provided for this purpose, in order to enable the Court to determine the nature and purpose of the application without having to refer to other documents. Furthermore, additional explanations on the facts and complaints that the applicant may attach to the form must not exceed twenty pages in total (which, if typewritten, must be in a font of at least 12 points in the text and 10 in the footnotes) and must be paginated and divided into numbered paragraphs.
The third change concerns the information and documents to be provided to the Court. From now on, the application form, that is to say all the fields that apply to the situation of the applicant, must be completed in full. The application form must also be accompanied by copies of relevant documents. If this is not the case, the applicant will receive a reply from the Registry indicating that no file has been opened and that the documents were not kept.
The fourth change, which is also very significant, relates to the interruption of the period of six months following the final judgment of the highest domestic Court. From this point forward, an incomplete application will no longer be considered sufficient to suspend this period. However, there is no guarantee that the applicant will have sufficient time to lodge a new application before the expiry of the deadline. Here again, the break with the past is clear, a past where it was only necessary to submit a complaint to the Commission – or the Court after the entry into force of Protocol No.11 – to interrupt the running of the time-limit.
The Practical Difficulties
Applicants, and especially their representatives, have to overcome new practical difficulties. It is well known, however, that the Court has every interest in considering requests introduced by legal professionals.
The first problem relates to the difficulty, or perhaps impossibility, for certain applicants to obtain the application form within a reasonable time. This is especially relevant to people remanded in custody without a lawyer, asylum seekers, the homeless, persons suffering with mental illness, etc. Although Article 47(1) includes the expression “unless the Court decides otherwise”, this seems to be a simple stylistic clause designed to appear reassuring.
The second difficulty concerns the signing of the application form when the applicant is represented. As power of attorney is incorporated into the form, it must be signed by the applicant himself. However, it can often be difficult for a lawyer or an NGO to be quickly and physically in contact with an inmate or with someone residing in a very remote place. Furthermore, sending a completed application form by post poses a great risk that the applicant will not send it within the six months time-limit, or not at all. Moreover, the new system proves to be burdensome for representatives acting on behalf of several applicants whose applications may differ in facts but raise the same legal issues: each application must be made on a separate form with the information and documents required.
The third difficulty, somewhat less serious, arises from the documents to be attached to the form. The list of documents should fit on one single page comprising twenty-five lines. Documents must be classified by date and proceedings and accompanied with a brief description. However it is uncertain that even with similar or repetitive cases, such as those relating to the length of pre-trial detention or legal proceedings, a single page will suffice, not to mention complex cases involving multiple applicants and proceedings.
In conclusion, the new Article 47 marks a key development in the manner in which the Court confronts the flood of applications coming from all over Europe. It certainly contributes to a reduction in their number. It obliges litigants and legal professionals to become accustomed to increased demands, despite educational efforts made by the Registry during its entry into force. Ultimately, it is to be hoped that the implementation materials and accompanying texts (both the form and instructions thereof) will be subject to slight revisions if necessary in order to benefit from the experience and improve the system.
Lawyer at the Paris Bar
Professor at the College of Europe
Former Jurisconsult of the European Court of Human Rights