The monetary costs can be divided in the costs of legal advice (though in all IHRL bodies legal
representation is not required, but advisable), the costs of exhausting local remedies65 and the
expenses relating to the court proceedings, such as traveling and reimbursing the expenses of
witnesses. The expected costs of a complaint then are a function of the expected outcome of the
trial, if the costs are allocated depending on the outcome of the trial. But with the exception of
the ECtHR,66 legal fees are not explicitly recoverable in case of winning and, again with the ex-
ception of the ECtHR, there is no legal aid provision for those parties who cannot afford to bring
a petition otherwise. Nevertheless, other judicial bodies may include legal costs in damages in
case those are awarded.67 In all other cases, the potentially unrecoverable costs of petitions even
in the case of winning may deter meritorious complaints. This is especially the case if the judi-
cial body just states a violation of the respective treaty without recommending reparations. The
Human Rights Committee (HRC)68 and the ECtHR69 themselves stated for national legal cost
recovery that high expected costs may deter complaints in human rights cases. It can be hypothe-
sized that legal aid and explicit cost recovery provisions lead, ceteris paribus, to higher amounts
of complaints.70 That said, there are many cases where law firms act pro bono, thus alleviating
the costs substantially.71 The same applies if NGOs bring cases either as altruistic claims or on
behalf of the victim as representatives. Nevertheless, subsidizing meritorious complaints through
65 All treaties or Rules of Procedure of the regional courts as well as of the UN treaty based system require the
exhaustion of local remedies, unless those are not effective or unreasonably prolonged. Usually the judicial
bodies dispense with this requirement if local remedies take to long or are deemed to be ineffective. The
exhaustion of local remedies requirement does not affect the argument of this article as the complaints can
always be gathered on the international level, even if on the national level only individual complaints are
allowed.
66 The ECtHR holds the practice that only legal costs and expenses found to have been actually and necessarily
incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention. This
may include domestic legal costs actually and necessarily incurred to prevent or redress the breach of the
Convention. Nevertheless, the Court may include higher costs, even if they were not submitted, if it deems
that those costs were in fact incurred. See ECtHR Case of Aziz v. Cyprus, supra note 27, at para. 46.
67 For a critique concerning the UN treaty based system, see Murat Metin Hakki, “The Silver Anniversary of
the UN Human Rights Committee: Anything to celebrate?”, International Journal of Human Rights 6 (2002),
85-102, 93.
68 See See Anni Àârelâ and Jouni Nakkalajarvi v. Finland, Communication No. 779/1997 (4 February 1997),
U.N. GAOR, 57th Sess. , Supp. 40, Vol. II, at 117, U.N. Doc A/57/40 (Vol. II) (2002) concerning Sami
Minority rights at para. 7.2.
69 E.g. in the case of Airey v. Ireland (Appl. No. 6289/73), 32 Eur. Ct. H.R. (ser. A) (1980), (Judgment of 11
September 1979), the ECtHR held that although the Convention does not explicitly provide for a right to free
legal assistance in civil cases, in some circumstances it may oblige the state to provide legal aid in civil
disputes. Article 6.1 ECHR may require the states to provide free legal assistance when such assistance
proves indispensable for securing an effective access to court either because legal representation is
mandatory under the domestic law or because of the complexity of the procedure or the case. There is no
reason why that argument should not be extended to IRHL bodies.
70 That may be one reason why the ECtHR has the most applications. I am well aware though that funds for
legal aid are missing within the UN-treaty based system and also for the other regional bodies, see Cesare
P.R. Romano, “International Courts and Tribunals: Price, Financing and Output”, in: Stefan Voigt et al.
(eds.), International Conflict Resolution. Conferences on New Political Economy 23, 2005, Tübingen,
forthcoming for the budget comparison of the Inter-American Court and the ECtHR.
71 See e.g. Laurence R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the
Commonwealth Caribbean Backlash Against Human Rights Regimes”, Columbia Law Review 102 (2002),
1832-1909, at 1877, Fig. 4, who finds that in the representation of death row defendants in petitions filed
from Commonwealth Caribbean Nations with Human rights tribunals, over 80% were represented by
lawyers, mostly pro bono.
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