Victim Status Within Human Rights

NGOs and human rights lawyers are the main human rights protectors at national and international levels. Their participation in the process of negotiation and drafting of national and international human rights documents and of their subsequent implementation by bringing complaints to the court help to provide effective system of human rights protection and to monitor State compliance with international human rights standards.

According to Article 34 of the ECHR, every natural person as well as every non-governmental organization (NGO) or group of individuals can apply to the European Court of Human Rights (ECtHR) [1] . If an NGO brings a claim to the ECtHR, it must fulfill the requirements for the “victim status”. Under art. 34 of the ECHR, the claimant must be “the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. [2] It means that in order to determine the status of “victim” the Court applies the standard test which requires that the claimant must personally suffer from violation of his/her rights, enumerated in the Convention. Therefore, those natural or legal persons, who are not affected in one of their rights guaranteed by the Convention, cannot apply to the ECtHR. It is important to mention here, that applying the standard test to determine the “victim” status the Court also takes into account the following important requirements: 1) the term “victim” is interpreted by the Court autonomously and irrespective of domestic rules concerning interest in or capacity to take action [3] ; 2) the notion of “victim” does not necessarily require the existence of injury; [4] 3) interpretation of the concept ‘victim’ shall be evolved in the light of conditions in contemporary society and it must be applied without undue formality [5] ; 4) the status of “victim is closely connected not only with procedural but also with substantive rights, enshrined in the ECHR, i.e. there is no sufficiently qualified victim, if there is no violation of the substantive human rights provisions. [6]

A person, a group of persons or an NGO is usually concerned as a victim if such person(s) or NGOs are directly affected by the State action, which violates their conventional rights [7] . However, the Court has also recognized the status of “potential victim”, i.e. natural or legal persons who can demonstrate that they have a serious and imminent risk of being directly affected by the alleged legal situation in the country. [8] “Potential victim” might be a victim of on-going violation of the rights, enshrined in the ECHR. Therefore, the individuals and NGOs can argue that they are victims of the state of the law, which violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it. [9] The concept of “potential victim” may arise in cases of secret surveillance where an individuals or NGOs can claim but cannot clearly establish that they have been the subjects of such secrete surveillance measures, organized by State. Therefore, the Court carefully draws distinction from the complaint on unlawful actions, committed by State, and complaint, aimed at challenging the existence of the alleged state of law, which potentially violates the applicant’s rights, established in the Convention. [10]

Furthermore, natural or legal person might be recognized as an “indirect victim,” who is directly affected by the violation of third parties’ Convention rights. [11] This rule of the Court is important for determination of the “victim” status for NGOs and human rights lawyers. The Commission indicated that “the applicant cannot complain as a representative for people in general, because the Convention does not permit such an actio popularis. The Commission is only required to examine the applicant’s complaints that he himself was the victim of a violation”. [12] This rule is still applied by the ECtHR. However, in certain cases NGOs can act as a representative for the actual victim. The Court held that in such cases human rights lawyers or NGOs are entitled to lodge a complaint if the victim has serious mental disabilities [13] , or the victim is a child, who cannot be represented by his/her parents. Such representation shall be made irrespective of whether such persons have standing to bring a claim under the provisions of domestic law. Nevertheless, initiation of proceedings in the public interest without being the victim of a violation of the conventional rights is prohibited.

Therefore, the ECHR has strict rules of standing, which establish that even in the case of violations of the substantive conventional rights there will not be any remedy for a claimant, if he is not “sufficiently affected” or if it is impossible to establish a direct link between the applicant and the violation alleged. Therefore, when NGOs or human rights lawyers file a complaint in the ECtHR, they must fulfill all the requirements for the status of “victim.” It means that they can bring claims in front of the ECtHR only if they are themselves victims (unlawful ban on assembly contrary to art. 11 of the ECHR, for example).

However, despite the fact that the Court tries to interpret the concept of “victim” autonomously and irrespective of domestic rules of the Member States, concerning interest in or capacity to take action, during the last years Court’s approach has been changed slightly. It might be explained by the fact that the Court interprets the Convention as “a living instrument which must be interpreted in the light of present day conditions”. [14] Such present day conditions are shaped by domestic legal systems of the Member States of CoE. For example, the English system confers standing on all those, who are directly affected. Moreover, locus standi of public interest litigants is the subject to the discretion of the court. [15] In France NGOs have access to court if they can prove a connection between their objectives and activities. [16] Therefore, domestic laws of certain Member States of the CoE broaden the standing requirements for NGOs and allow them to participate in legal proceedings. It is important to underline, that NGOs can effectively participate in legal proceedings in court due to the fact that they are usually well informed and have wider access to various resources in comparison with individuals, who wish to lodge a claim.

A significant achievement was made by the Court when it granted the possibility for NGOs to submit amicus curiae [17] in its litigation proceedings. Therefore, due to amicus curiae NGOs have been actively involved in litigation in front of the ECtHR. It makes NGOs important participants in legal proceedings without obtaining the “victim” status.

Despite strict and narrow rules of standing in the ECtHR, NGOs and human rights lawyers have possibility to participate in litigation proceedings before the Court as victims, as representatives or by submitting amicus curiae. Therefore, they are capable to have an influence on the Court’s final decision.