Last resort before Strasbourg

Proceedings Before the ECtHR: Marbella Legal Team

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Proceedings Before the European Court of Human Rights

The European Court of Human Rights, based in Strasbourg, is the last resort available to anyone who considers that their fundamental rights have been violated by the Spanish authorities and that such a violation has not been remedied by the domestic courts, including the Constitutional Court. It is an extraordinarily demanding avenue in terms of its formal admissibility requirements — the Court declares more than ninety percent of the applications it receives inadmissible — and one of growing practical relevance, since a judgment finding a violation issued by Strasbourg can today lead to the review of a final criminal conviction handed down in Spain.

At RAKH ABOGADOS we take on the preparation of these applications with the technical rigour demanded by a court that applies its admissibility criteria with extraordinary strictness.

1. The subsidiarity of the ECtHR: it is not a "fourth instance"

The Strasbourg Court does not review the assessment of evidence or the interpretation of domestic law carried out by the Spanish courts: its function is limited to examining whether, in the specific case, a violation has occurred of one of the rights recognised in the European Convention on Human Rights and its Protocols. Article 35 § 1 of the Convention requires, as an inescapable precondition of admissibility, that all available and effective domestic remedies have first been exhausted. In Spain's case, this generally means having exhausted the relevant ordinary judicial route and, where the right invoked is capable of constitutional protection, having also lodged the "recurso de amparo" (Spanish constitutional appeal for the protection of fundamental rights) before the Constitutional Court, since that remedy constitutes an effective domestic remedy for the purposes of the Convention. Applying to Strasbourg without having correctly exhausted this prior route is the most frequent cause of inadmissibility, and it is moreover irreversible: once the failure to exhaust remedies is established, the application is closed permanently.

2. The four-month time limit: an absolute deadline with no exceptions

Following the reform introduced by Protocol No. 15 to the Convention, in force since 1 August 2022, the time limit for lodging an application was reduced from six to four months, calculated from the date of the final domestic decision exhausting the available remedies. This is a strict time limit, with no possibility of extension or exception, which begins to run from the date of the decision itself and not from the moment the person concerned becomes effectively aware of its written content, nor from the moment legal assistance is retained. Given the severity of this deadline, it is essential to assess the viability of the application and begin its preparation from the very moment the domestic decision exhausting the available remedies is issued, without waiting until the deadline approaches.

Calculator: four-month deadline before the ECtHR

Based on the time limit cited above: four months from the date of the final domestic decision, with no possibility of extension.

Date of the final domestic decision

3. Other admissibility requirements: direct victim status and significant disadvantage

Alongside exhaustion of domestic remedies and the four-month time limit, Article 35 of the Convention imposes other requirements that we verify in every case: the application must be lodged by someone who can demonstrate the status of direct victim of the alleged violation, excluding actio popularis or the defence of abstract or general interests; and, since Protocol No. 14 entered into force, the Court may declare inadmissible applications in which the applicant has not suffered a significant disadvantage, unless respect for human rights requires an examination of the merits of the case or the case has not been duly considered by a domestic tribunal. The application must also be formulated with express and precise reference to the specific Convention articles considered to have been violated, citing the Court's own relevant case-law, and not simply as a repetition of the domestic-law arguments already raised before the Spanish courts.

4. Interim measures under Rule 39 of the Rules of Court: urgency in the face of irreparable harm

Where the immediate enforcement of a domestic decision could cause serious and irreparable harm to the applicant — typically in cases of expulsion or extradition to a country where there is a real risk of torture, inhuman treatment or the death penalty, contrary to Article 3 of the Convention — Rule 39 of the Rules of Court allows a request for an urgent interim measure suspending that enforcement while the application is examined. The Court has held that a State's failure to comply with an interim measure ordered in this way constitutes, in itself, an autonomous violation of the right of individual application guaranteed under Article 34 of the Convention, giving these measures reinforced practical effect. A request for such a measure requires immediate and rigorous documentary justification of the real and imminent risk it seeks to avert, and it is dealt with as a matter of the utmost urgency, often within a matter of hours.

5. Enforcement in Spain: the review remedy following a Strasbourg conviction

A judgment of the European Court of Human Rights finding a violation of a Convention right in the context of Spanish criminal proceedings does not automatically overturn the domestic conviction: the reform of Article 954.3 of the LECrim (Spanish Criminal Procedure Act), carried out by Law 41/2015 of 5 October, expressly enabled the extraordinary review remedy before the Supreme Court as the means of giving effect in Spain to a Strasbourg judgment, provided that the violation found is of sufficient substance and influence on the content of the conviction. The Supreme Court has already applied this remedy in various proceedings — including a case in which a conviction for an offence of insulting Spain proved incompatible with the freedom of expression recognised under Article 10 of the Convention — reviewing the final conviction and adapting its effects to the findings of the European Court. Bringing this review remedy, previously authorised through the corresponding incidental application before the relevant Chamber, constitutes the final link in the strategy we begin to build from the outset of the proceedings before Strasbourg itself.

Our strategy

Thorough verification of the exhaustion of domestic remedies: before any other action, we confirm that all effective domestic remedies have been correctly exhausted, including the "recurso de amparo" (constitutional appeal for the protection of fundamental rights) where applicable.
Rigorous monitoring of the deadline: we calculate the four-month time limit from the final domestic decision with precision, and begin preparing the application as far in advance as possible.
Requesting urgent interim measures: where there is a risk of irreparable harm, we prepare a Rule 39 interim measure request before the Court with the utmost speed.
Bringing the review remedy: once a favourable Strasbourg judgment has been obtained, we prepare the review remedy before the Supreme Court to give it effect within the domestic legal system.

Do you believe your fundamental rights have been violated by the Spanish authorities without the domestic courts having remedied that violation? The strict four-month deadline requires immediate action. At RAKH ABOGADOS we prepare these applications with the technical rigour Strasbourg demands, throughout Spain.

Frequently asked questions

Can the European Court of Human Rights halt an extradition while it decides on my application?

See answer in Frequently Asked Questions →

How long do I have to lodge an application with the European Court of Human Rights?