Human rights courts: a beginner's guide

As the new academic year starts, let's get back to basics. Which courts decide human rights cases, when, and by what rules?
French milk farmers pour milk
EU law is not just about mergers and milk quotas Photograph: Jean Francois Monier/AFP/Getty Images

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act (HRA).


If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant's human rights.

But, hang on, why don't we take our human rights case first time out to the European court of human rights (ECtHR) in Strasbourg, particularly as we have been told that we don't have to pay anything to the other side if we lose (not something which usually happens in the domestic courts)? This is where we hit a problem – you can only go to Strasbourg when you have exhausted all domestic remedies "according to the generally recognised rules of international law and within a period of six months from the date on which the final decision was taken" – article 35 of the European Convention on Human Rights (ECHR).

So, not so easy then. Say you have a case which is very difficult to win under UK law, but your chances are better in Strasbourg. A good example would be where you have a supreme court precedent against you, but a recent Strasbourg case with you – e.g. Keyu, decided last week, on which a post will shortly follow. This means you have to try out your human rights arguments before a judge, fail, and then try and fail before the court of appeal (and supreme court, if you are allowed to get that far).

The idea of "exhaustion" of domestic remedies is twofold, first that you give the member state the opportunity of preventing or putting right the violations alleged against it, and second, you don't clog up the Strasbourg courts with unnecessary cases which could be dealt with in, say, your local county court. Not something that the judges there (including our new man, Paul Mahoney – on the left in the image – with 30 years of administrating the ECtHR behind him) would like at all.

Don't forget Luxembourg …

Reasonably straightforward so far?

But now there is another European court, and one which the tabloids (and the odd broadsheet) endlessly muddle up with the Strasbourg court. Its full name is the court of justice of the European Union (CJEU), and it sits in Luxembourg. As the name on the tin suggests, it determines issues of European Union law. It has two bits, the full court and the general court, the latter a less than helpful re-brand of its previous role as the court of first instance. EU law contains human rights law, because human rights principles are part of EU law and have (belt and braces) also now been copied into the EU Charter (what is the Charter? – see this post).

But remember EU law is not just about mergers and milk quotas and faceless corporations. Most of our environmental law is European in origin. Free movement of EU citizens lies behind great swathes of immigration law. Public health, consumer protection, freedom of information, VAT, employment, discrimination, you name it, and if you scratch hard enough, you will find that much of it bears the brand of Brussels (where the laws are made) or Luxembourg (where the cases are decided).

So in any such case, you may find a Euro-point – for example, my recent post about wanting to rely on an English default judgment in Latvia – using an EU regulation about recognition of those judgments. And once you have a Euro-point, you may have an article 6 ECHR fair trial point, etc etc.

So how do you get on the plane to the Luxembourg court without finding that your journey is wasted? This is where it becomes a bit more difficult. Broadly, cases with private party claimants end up there for two reasons.

First, you have persuaded a domestic court that the case raises some difficult point of European law, and therefore the domestic court refers the case to Luxembourg to answer that point of law, under article 267 TFEU. Again, take my Latvian article 6(1) challenge as an example. Luxembourg helped the Latvians with the law (a bit), but left it to the Latvian courts then to find the facts and apply that law. So not all plain sailing, given that it takes 18 months or so to get there, and sometimes in really difficult cases you might have to go there twice if the CJEU comes up with a particularly opaque set of answers first time round.

Secondly, you can start proceedings directly in Luxembourg, but only (putting it simply) when you want directly to challenge some European law or measure, saying that it is unlawful by reference to another bit of EU law (which might include a bit of human rights principles) – here one has to reach for article 263 TFEU. In such a case, where you are challenging a bit of Euro-law or Euro-decision, and want to have it set aside or annulled, you have no choice.

Domestic courts don't have the power to do this, so you have to go to Luxembourg. For examples of these proceedings and the very restrictive rules as to standing which apply to them, see my posts here (a challenge to an EU trade law about seal fur) and here (about the EU Commission's decisions about enforcement of pesticides and air quality rules).

But, where you have the choice, why would you want to persuade the CJEU to answer your Euro-human rights issue? The main reason is that some arguments simply go down better with the "civil" lawyers who make up most of the judges on the court – "civil" (click here for a bit of Wiki-learning on this) as opposed to the common law (or judge-made) tradition in which the UK (and only the UK in the EU) operates.

Our domestic judges have become far more accustomed to dealing with some of the broad principles of EU law (such as proportionality or judicial effectiveness), but even so a supranational court may be more receptive to arguments which, say, threaten some sacred cow of common law rule-making which looks a bit odd from a continental perspective.

So that's sorted then, into its nice little boxes. But just you wait until the EU signs up formally to the ECHR (as it has to under article 6 of the Lisbon treaty), such that you can take the EU (and the CJEU?) to the Strasbourg court – how will that be organised? Answer is, we don't know the details, but see an earlier post for a taster.