EUROPEAN COURT OF HUMAN RIGHTS

The European Court of Human Rights (French: Cour européenne des droits de l’homme; ECtHR) in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or other contracting states, and the Court can also issue advisory opinions. The Convention was adopted under the auspices of the Council of Europe and all of its 47 member states are parties to the Convention.

History and structure

The Court was established on the 21 January 1959 by virtue of Article 19 of the European Convention on Human Rights when eight signatories acknowledged the jurisdiction of the Court. The function of the Court is "to ensure the observance of the engagement undertaken" by the contracting states in relation to the Convention and its protocols. The jurisdiction of the Court has been recognised by 47 European states. Under Protocol no.11 of the Convention, effective since 1 November 1998, the Court became full-time and the European Commission of Human Rights was abolished.^[1]

The accession of new states to the European Convention on Human Rights following the fall of the Berlin Wall in 1989 led to a sharp increase in applications to the Court. The effectiveness of the Court was hampered by the large number of pending applications accumulating, which grew steadily. In 1999 8,400 applications were allocated to be heard, in 2003 it was 27,200 cases, with approximately 65,000 pending applications. In 2009 57,200 applications were allocated, with the number of pending applications rising to 119,300. At the time more than 90 percent of applications were deemed inadmissible, and 60 percent of decision by the Court related to what is termed repetitive cases, where the Court has already delivered judgement finding a violation of the European Convention on Human Rights or where well established case law exists. The Protocol no.11 reforms thought to deal with the backlog of pending applications by establishing the Court full-time, simplifying the system and reducing the length of proceedings. However, as the workload of the Court continued to increase, contracting states agreed to reform the Court again and in May 2004 the Council of Europe Committee of Ministers adopted Protocol no.14 to the European Convention on Human Rights. Protocol no.14 aimed to reduce the workload of the Court and that of the Committee of Ministers of the Council of Europe, which supervises the execution of judgements, so that the Court could focus on cases that raise important human rights issues.^[2]

Protocol no.14 reforms 2010

Protocol no.14 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention.^[3] Between 2006 and 2010, Russia was the only state of 47 contracting states to refuse to ratify Protocol no.14. In 2010, Russia ended its opposition to the protocol, in exchange for a guarantee that Russian judges would be involved in reviewing complaints against Russia.^[4] Protocol no.14 led to reforms in three areas: The Court's filtering capacity was reinforced to deal with clearly inadmissible applications, new admissibility criteria where introduced for cases where the applicant has not suffered a significant disadvantage, and measures were introduced to deal more effectively with repetitive cases.^[5]

Protocol no.14 amended the Convention so that judges would be elected for a non-renewable term of nine years, whereas previously the term was six years with the option of renewal. Amendments were made so that a single judge could reject plainly inadmissible applications, prior to the reforms only a three judges committee could make this final decision. In cases of doubt, the single judge refers the applications to the Committee of the Court. A single judge may not examine applications against the state in respect of which he or she was elected. The three judge committee was empowered to declare applications admissible and decide on the merits of the case if it was clearly well founded and on the basis of well established case law. Previously the three judge committee could declare the case inadmissible, but could not make decisions on the merits of the case, which could only be done by a chambers of seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee decides on the merits of a case, the judge elected to represent that state is no longer a compulsory member of the committee. The judge can be invited by the committee, to replace one of its members, but only for specific reasons, such as when the application relates to the exhaustion of national legal remedies.^[6]

Protocol no.14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload of the Court Protocol no.14 encourages settlements at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement's execution. Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgement if there are difficulties in the execution of a final judgement. In order to prevent repetitive applications concerning structural problems in contracting states on which the Court has previously made a final decision, the Committee of Ministers can in exceptional circumstances and with a two third majority, initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court. Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the Lisbon Treaty, which entered force in December 2009, provides that the European Union should access the Convention.^[7] The Committee of Ministers is to evaluate in 2012 to 2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the Court. The Committee of Ministers is to decide before 2019 whether more profound reforms of the Court are necessary.^[8]

Judges

Prior to the adoption of Protocol no.14, judges were elected for a six-year term, with the option of renewal. Now judges are elected for a non-renewable nine year term.^[9] The number of full-time judges sitting in the Court is equal to that of the contracting states to the European Convention on Human Rights. The Convention requires that judges are of high moral character and to have qualifications suitable for high judicial office, or be a jurisconsult of recognised competence. Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the three candidates each contracting state nominates. Judges are elected whenever a sitting judge's term has expired or when a new states accedes to the Covenant. Judges must retire at the age of 70, but may hold office until a new judge is elected and/or the cases in which they sit have come to an end. The judges perform their duties in an individual capacity and have no institutional or other ties with the contracting state on behalf of whom they were elected. To ensure the independence of the Court judges are not allowed to participate in activity that may compromise the Court's independence. They can only be dismissed from office if the other judges decide, by two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges are, for the duration of their term, beneficiaries of the privileges and immunities provided in Article 4 of the Statute of the Council of Europe.^[10]

Plenary court and administration

The plenary court is an assembly of all judges, which has no jurisdictional function, but elects a president, vice-president, registrar and deputy registrar. It also deals with administrative matters, discipline, working methods, reforms, the establishment of Chambers and the adoption of the Rules of Court.^[11]

Jurisdiction

The jurisdiction of the court broadly divides into inter-state cases, applications by individuals against contracting states, and advisory opinions in accordance with Protocol No.2. Applications by individuals constitute the majority of cases heard by the Court.^[12] Judges sit in Committee of three judges, Chambers of seven judges and a Grand Chamber of 17 judges to perform jurisdictional functions.^[13]

Applications by individuals

Applications by individuals against contracting states, alleging that the state violates their rights under the European Convention on Human Rights, can be made by any person, non-governmental organisation or group of individuals. Once registered with the Court, the case is assigned to a judge rapporteur, which can make the final decision that the case is inadmissible. A case may be inadmissible when it is incompatible with ratione materiae, ratione temporis or ratione personae, or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of domestic remedies, lapse of the six months form the last internal decision complained of, anonymity, substantial identity with a matter already submitted to the Court, or with another procedure of international investigation. If the rapporteur judge decides that the case can proceed, the case if referred to a Chamber of the Court which, unless it deems the application inadmissible, communicates the case to the government of the state against which the application is made, asking the government for its observations. The Chamber of Court then deliberates and judges the case on admissibility and merit. Cases which raise serious questions of interpretation and application of the European Convention on Human Rights, a serious issue of general importance, or which may depart from previous case law can be heard in the Grand Chamber if all parties to the case agree to the Chamber of the Court relinquishing jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts the referral.^[14][15]

Inter-state cases

Any contracting state to the European Convention on Human Rights can sue another contracting state in the Court for alleged breaches of the Convention.^[16]

Advisory opinion

The Committee of Ministers may, by majority vote, request the Court to give advisory opinions on legal questions concerning the interpretation of the European Convention on Human Rights, unless the matter relates to the content and scope of fundamental rights which the Court already considers.^[17]

Procedure and decisions

After the preliminary finding of admissibility the Court examines the case by hearing representations from both parties. The Court may undertake any investigation it deems necessary and contracting states are required to provide the Court with all necessary assistance for this purpose. The European Convention on Human Rights requires that all hearings, unless there are exceptional circumstances, are heard in public. In practice the majority of cases are heard in camera following written pleadings. In confidential proceedings the Court may assist both parties in securing a settlement, in which case the Court monitors the compliance of the agreement with the Convention. The judgement of the Grand Chamber is final, Judgements by the Chamber of the Court becomes final three months after it has been issued, unless a reference to the Grand Chamber has been made. If the panel of the Grand Chamber rejects the request for referral the judgement of the Chamber of the Court becomes final.^[18]

In final judgements the Court makes a declaration that a contracting state has violated the Convention, and may order the contracting state to pay material and/or moral damages and the legal costs incurred in domestic courts and the Court in bringing the case. Article 46 of the Convention provides that contracting states undertake to abide by the Court's final decision. Advisory opinions are not binding. The Court has thus far held that the Convention does not provide it with the power to repeal offending domestic laws or administrative practices. The Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court's judgement. The Committee of Ministers oversees the contracting states changes to domestic law to make them compatible with the Convention, or individual measures taken by the contracting state to redress violations. In practice judgments by the Court are usually complied with.^[19]

Relationship with other courts

The European Court of Justice

The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights. However, since all EU states are members of the Council of Europe and have signed the Convention on Human Rights, there are concerns about consistency in case law between the two courts. Therefore, the ECJ refers to the case-law of the Court of Human Rights and treats the Convention on Human Rights as though it was part of the EU's legal system. Even though its members have joined, the European Union itself has not, as it did not have competence to do so under previous treaties. However, EU institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the Convention. Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign the Convention. This would make the Court of Justice bound by the judicial precedents of the Court of Human Rights and thus be subject to its human rights law, resolving issues of conflicting case law.^{[citation needed]}

National courts

Most of the Contracting Parties to the European Convention on Human Rights have incorporated the Convention into their own national legal orders, either through constitutional provision, statute or judicial decision.^[20]

Criticism

The court's interpretation of the Convention's reach is at times subject to criticism as either too narrow or too wide. For instance, the former judge in respect of Cyprus, Loukis Loucaides, criticized the Court for a "reluctance to find violations in sensitive matters affecting the interests of the respondent States".^[21] On the other hand, the British Law Lord Hoffmann considered that the Court has not taken the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe".^[22] He was joined in the criticism by the president of the Belgian Constitutional Court, Marc Bossuyt.^[23]

Criticism from Russia, a country held to be in violation of the Convention by the Court in many decisions, is frequent. The Court's judge in respect of Russia, Anatoly Kovler, explaining his frequent dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary (Refah v. Turkey)".^[24] The chairman of the Russian Constitutional Court Valery Zorkin, pointing to the Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court decisions "touching the national sovereignity, the basic constitutional principles".^[25]

There has also been criticism of the Court's structure. Loucaides wrote that by introducing in its Rules a Bureau, the Court created "a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention".^[26]