Exhausting of Domestic Remedies prior to applying to ECHR

nowwalehtdna

Does one need to JR a final court of appeal (Circuit) to exhaust domestic remedies prior to applying to the ECHR? I was discussing this yesterday with someone who argued you could apply to the ECHR once the Court of Appeal had made a final decision and a JR is an extraordinary measure.

If however one would need to JR a decision prior to applying to the ECHR, if unsuccessful at either leave stage or hearing would one therefore need to further appeal to the Supreme Court in order to Exhaust domestic remedies?

murrayp4

afaik a judicial review is not necessary

blueythebear

nowwalehtdna wrote: »

Does one need to JR a final court of appeal (Circuit) to exhaust domestic remedies prior to applying to the ECHR? I was discussing this yesterday with someone who argued you could apply to the ECHR once the Court of Appeal had made a final decision and a JR is an extraordinary measure.

If however one would need to JR a decision prior to applying to the ECHR, if unsuccessful at either leave stage or hearing would one therefore need to further appeal to the Supreme Court in order to Exhaust domestic remedies?

You would need to appeal all the way to the SC before you can go the ECHR. This does not apply if the SC has already decided on the point in another case and it is not in your favour, then you can bypass the SC to go to Strasbourg.

The JR issue isn't relevant as I see it. If you argue some Convention ground and lose, you could JR it but if unsuccessful, you will be out of time to appeal. You would have to apply anyway to the relevant appeal Court, but if they refuse because you're out of time, then you have gone as far as you can so you should be able to go to Strasbourg.

Realistically though, you would know if there is a potential ECHR case there, and would litigate appropriately to get it to Strasbourg as soon as possible.

A JR is not an appeal and there is no requirement to JR a matter to get to ECHR. If you appeal up as far as the SC, you can apply to ECHR.

nowwalehtdna

Thanks for replies, in relation to the second. How can one appeal to the SC. For example if if jurisdiction began in the DC and on appeal to the CC where the Judge declares the appeal exhausted?

Are you talking about applying first to the HC for a declaration of incompatibility and then on to the SC?

To appeal a point of Law one would need the consent of the presiding Judge of CC. However if the Law is supported by the constitution yet incompatible with the European Charter, would that not by pass the need to go to SC given that success would be highly unlikely?

blueythebear

nowwalehtdna wrote: »

Thanks for replies, in relation to the second. How can one appeal to the SC. For example if if jurisdiction began in the DC and on appeal to the CC where the Judge declares the appeal exhausted?

Are you talking about applying first to the HC for a declaration of incompatibility and then on to the SC?

To appeal a point of Law one would need the consent of the presiding Judge of CC. However if the Law is supported by the constitution yet incompatible with the European Charter, would that not by pass the need to go to SC given that success would be highly unlikely?

If there is an ECHR point and it is a relevant point, the judge should allow an appeal. If the judge doesn't permit an appeal to the next higher court, then you can't appeal further. However, if it is obvious that the judge did not make the decision in accordance with fair prcedures, etc then you would realistically JR it to enable an appeal to the next court. However, Idon't believe that there would be any requirement to JR in that context.

If you can no longer appeal, obtain the order refusing leave to appeal and that should be enough for the ECHR.