Historical background

When the idea of a new Europe was proposed after World War II in which cooperation would replace conflict and war would become both unthinkable and materially impossible, those who supported the initiative that founded the Council of Europe and what evolved into the European Union placed human rights at the center.^[1] From the outset, it was decided that principles related to respect for human rights and their protection would govern relations between participating states. The European Declaration of Human Rights was to serve as the foundation stone of a new society that respected fundamental freedoms and rights. Drafting and ratifying this was one of the first tasks of the Council of Europe, formed May 5, 1949. It was, among others, Robert Schuman who, as one of the founding fathers of both the Council and the European Union, helped to place human rights firmly on the agenda. As France's foreign minister, he signed the European Declaration of Human Rights on November 4, 1950.

The Convention came into force September 3, 1953, establishing the European Court of Human Rights and the Commission on Human Rights. Under the Convention, any European citizen can seek redress through the Court provided that all avenues available within their nation-state have been exhausted. The aim of the court is to protect the civil and political rights of all Europeans. From 1953 until 1998, a two-tier system operated. First, the Commission adjudicated whether a petition qualified to be heard by the Court, then it was considered by the Court itself. The Commission consisted of members appointed for six years by their governments, but they did not represent their state. The court consisted of part-time judges. In 1994, the Council of Europe agreed to Protocol II, restructuring the Court with a single-tier and full-time judges.^[2]

States are also required under the Convention to "to give effect to the ECtHR's findings" even though individuals petition the court. States are the respondents; they can enter a complaint about the actions of another state. The aim, too, is for member states to standardize practice. The preference is for states to ensure that their own processes protect rights.^[3] Applicants may be given legal aid by the Court.

Structure

The Court became a permanent court with full-time judges on November 1, 1998, when the Commission was wound-up. Citizens now had the right to access the court directly. The new full-time Judges were elected by the Parliamentary Assembly of the Council of Europe.

By the time Protocol No. 11 entered into force the Court had delivered 837 judgments. At the end of 2005 the Court had delivered 5,968 judgments.

All member states of the Council of Europe have to sign and ratify the Convention. The court consists of a number of judges equal to the number of Contracting Parties, which currently stand at 47. Each judge is elected in respect of a Contracting Party by the Parliamentary Assembly of the Council of Europe. Despite this correspondence, however, there are no nationality requirements for judges (for example, a Swiss national is elected in respect of Liechtenstein). Judges are assumed to be impartial arbiters, rather than representatives of any country. Judges are elected to six-year terms. They can be re-elected.

The court is divided into five "Sections," each of which consists of a geographic and gender-balanced selection of justices.^[4] The entire court elects a President and five Section Presidents, two of whom also serve as Vice-Presidents of the court. All terms last for three years. Each section selects a Chamber, which consists of the Section President and a rotating selection of six other justices. The court also maintains a 17-member Grand Chamber, which consists of the President, Vice-Presidents, and Section Presidents, in addition to a rotating selection of justices from one of two balanced groups. The selection of judges alternates between the groups every nine months.^[5]

On September 18, 2008, the Court has delivered its 10,000th judgment, Takhayeva and Others v. Russia (no. 23286/04). The Strasbourg Court found violations of Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention on Human Rights concerning the applicants’ complaint that their relative disappeared after being abducted from their village in Chechnya by Russian servicemen.

Procedure

Complaints of violations by member states are filed in Strasbourg, and are assigned to a Section. Each complaint is first heard by a committee of three judges, which may unanimously vote to strike any complaint without further examination. Once past committee, the complaint is heard and decided by a full Chamber. Decisions of great importance may be appealed to the Grand Chamber. Any decision of the court is binding on the member states and must be complied with,^[6] except if it consists of an advisory opinion.^[7]

It is the role of the Committee of Ministers of the Council of Europe to supervise the execution of court judgments, though it has no formal means of using force against member countries in order to comply. However, the ultimate sanction of non-compliance is expulsion from the Council of Europe and thus becoming a "pariah" state within Europe. Furthermore, the European Union takes a keen interest in the Convention and Court (and its jurisprudence) so would not look kindly upon any EU member state that did not fulfill its Convention obligations.

Reform

Due to the increase in awareness of European citizens of their rights under the Convention, the Court was becoming a victim of its own success. Some cases were taking up to five years before being decided and there is a significant backlog. For example, between November 1, 2003 and February 29, 2004, the Court dealt with 7,315 cases, of which 6,255 were declared inadmissible.

Working on the principle that "justice delayed is justice denied," the Council of Europe set up a working party to consider ways of improving the efficiency of the Court. This resulted in an amendment to the Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 14. This new protocol, which requires universal ratification by all Council of Europe member states to come into force, makes a number of changes:

§ A single judge can decide on a case's admissibility. Currently, three judges decide.

§ Where cases are broadly similar to ones brought previously before the Court, and are essentially due to a member state failing to change their domestic law to correct a failing highlighted by that previous judgment, the case can be decided by three judges rather than the seven-judge Chamber.

§ A case may not be admissible if it is considered that the applicant has not suffered "significant disadvantage." However, this is not a "hard and fast" rule.

§ A member state can be brought before the court by the Committee of Ministers if that state refuses to enforce a judgment against it.

§ The Committee of Ministers can ask the Court for an "interpretation" of a judgment to help determine the best way for a member state to comply with it.

Amnesty International has expressed concern that these changes to the admissibility criteria will mean individuals may lose the ability to "gain redress for human rights violations."^[8]

Notable cases

In December 1977, the court ruled that the government of the United Kingdom was guilty of "inhuman and degrading treatment," of men interned without trial, by the court, following a case brought by the Republic of Ireland (Case No. 5310/71). The court found that while their internment was a violation of the convention rights, it was justifiable in the circumstances; it, however, ruled that the practice of the five techniques and the practice of beating prisoners constituted inhumane and degrading punishment in violation of the convention, although not torture.^[9]

In 1980, the court ruled out the fetal right to sue the mother carrying the fetus. In Paton v. United Kingdom, it was discovered that the life of a fetus is "intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman."^[10]

In 2003 and 2004, the court ruled that "that sharia is incompatible with the fundamental principles of democracy" (13/02/2003),^[11] because the sharia rules on inheritance, women's rights and religious freedom violate human rights as established in the European Convention on Human Rights.

In 2006, the court denied admissibility of the applications of former Soviet secret services operatives convicted in Estonia for Stalinist crimes against humanity after Estonia became independent in 1991.

Since the Russian military invaded Chechnya for the second time in 1999, the court has agreed to hear cases of human rights abuse brought forward by Chechen civilians against Russia in the course of the Second Chechen War, with 31 rulings to date as of June 2008 (including regarding the cases of torture and extrajudicial executions).^[12] In 2007, for example, the Court ruled that Russia was responsible for the killings of a human rights activist Zura Bitiyeva and her family.^[13] Bitiyeva herself had filed a complaint against Moscow with the ECtHR in 2000 for abuse while in detention but she was murdered in 2003 before the ruling was issued.^[14] Other cases ruled against Russia included the deaths (or presumed deaths after years of forced disappearance) of Ruslan Alikhadzhyev, Shakhid Baysayev, Nura Luluyeva and Khadzhi-Murat Yandiyev, the case of the indiscriminate bombing of Katyr-Yurt, and some of the deaths during the Novye Aldi massacre. As of 2008, ECtHR has been flooded by a complaints from Chechnya, what the Human Rights Watch called "the last hope for the victims."^[12]

Architecture

The building, which houses the court chambers and Registry (administration and référendaires), was designed by the Richard Rogers Partnership and completed in 1995. The design is meant to reflect, amongst other things, the two distinct components of the Commission and Court (as it then was). Wide-scale use of glassemphasizes the "openness" of the court to European citizens.

Future

The vision that lies behind both the European Convention on Human Rights and the Court was of human rights as a "a unifying ideal, one of the core values around which the people … of Europe would coalesce."^[15] Unlike the Universal Declaration of Human Rights which is not a treaty between states but a statement of good intent, the European Convention, through the European Court of Human Rights, is a legally binding document. Several member states have incorporated all or most of the Convention into national law, which means that most cases can be addressed by national courts.

The founding fathers of Europe saw what they were attempting as a model for the whole world. Speaking about Europe's commitment to human rights and fundamental freedoms, José Sócrates as President-in-Office of the Council of the European Union said in 2007:

The defence of Fundamental Rights is recognised as a value that is essential to European identity, one that is part of our genetic code. It is something that structures the whole European project and which allows the Union to be defined as a Union of values. And the unconditional affirmation of these values is also what the world expects from Europe.

The promise of international and national commitment to human rights and to non-violent resolution of disputes, which is also part of the founding vision of the new Europe, is that respect for human dignity and hatred of violence will become so much a part of who people are that injustice and war would eventually become unthinkable.

The European Court of Human Rights receives many complaints from people who believe that their government has violated one or more of the human rights of the European Convention on Human Rights.

To make the human rights of the European Convention on Human Rights more than a piece of paper, it must be possible for citizens to complain if they believe that the state has infringed one or more of their human rights. However, the Court will only accept a complaint if it has already been considered by all potential national complaints and appeal bodies. In recent years, the European Court of Human Rights has pronounced more than 1,000 judgments a year. The Court has 47 judges, one from each Member State.

History of the Court
The European Court of Human Rights was established in 1959. It accepts applications (complaints) from both individuals and Member States concerning breaches of the 1950 European Convention on Human Rights. The decisions of the Court are binding on the infringing Member State, but also indirectly influence the extent of the human rights protection in all the other European states.

Guarantors of compliance with human rights
The Committee of Ministers of the Council of Europe (in principle the foreign ministers of the 47 Member States, in fact a secretariat and the ambassadors to the Council of Europe) verifies that Member States abide by judgments against them. This implies comprehensive correspondence with the Member States. Mostly, they quickly pay compensation to individuals infringed upon, but it may take several years before case law changes or legislation colliding with the rights of the European Convention on Human Rights is amended.

Other committees or bodies under the Council of Europe have been set up to prevent human rights violations. As an example, this applies to the 1987 European Convention for the Prevention of Torture, which acts through the Committee for the Prevention of Torture, whose expert members visit police stations, prisons and other institutions in the Member States. Reports from these visits and periodical reports from the Member States provide an in-depth view of the torture situation.

Additionally, the European Human Rights Commissioner and rapporteurs from the Parliamentary Assembly of the Council of Europe visit the Member States and prepare national reports, particularly about legislative defects or omissions or about elections. Another activity is the strengthening of human rights education in Member States.

Strasbourg complaints system
Until 1998, the Strasbourg complaints system had two tiers: applications were lodged with the European Commission for Human Rights, which then made an initial review of the application, no matter whether it was lodged by an individual, an association or maybe a Member State. It was and remains a condition that the applicant had exhausted all possibilities in the national complaints system, that is, had approached all judicial instances in his or her country of origin, before the application would be processed by the Commission and perhaps ultimately be brought before the European Court of Human Rights.

The first important ‘goal post’ to be passed is the decision whether the application is found admissible on its merits. A very large number of applications are declared inadmissible because they do not observe various formal conditions for being considered in Strasbourg. Once it has been declared admissible by a committee of three judges, an attempt is always made to reach a settlement between the applicant and the relevant Member State.

The Commission assisted in this previously, and the Court does so today. In a typical settlement, the Member State will make an ex gratia payment, that is, a payment that does not imply that the Member State has acknowledged a breach of the Convention, but a payment to serve as a consolation. If this fails, most applications pass on to a chamber of seven judges. A few applications go all the way to the Grand Chamber consisting of 17 judges for final determination.
Court workload

The number of applications has risen considerably over the years. Until the mid-1990s, there were only about 25 Member States, but since 2007 the Council of Europe has had 47 Member States – only Belarus is not a member. However, awareness of the complaints system in Strasbourg has also grown in Western Europe. Since 2005, the number of judgments passed by the European Court of Human Rights has been around 1,500 each year. However, by 1 January 2008, the annual number of pending applications exceeded 100,000. In quite a number of judgments, the Court has applied a so-called ‘dynamic interpretation’, meaning that the individual rules of the European Convention on Human Rights are applied in light of current social developments.

Several adjustments of the work procedures of the Court have proved unable to cope with the growing number of applications. A radical change in the conditions for admissibility of applications to the Court requires the adoption of an additional protocol ratified by all Member States. An appeal to the Member States to set up national complaints bodies for certain types of human rights violations has slightly eased the Court’s burden. Since the entry into force of the European Convention on Human Rights in 1953, more than ten additional protocols have been adopted, either adding new rights or changing the structure of the complaints system.

Judges
The number of judges corresponds to the number of states that have ratified the Convention. However, a few of the judges from the 47 Member States are not nations of the appointing states because some states suffer from recruiting problems due to their smallness. The Member States propose candidates (there has to be three) for the Bench for a six-year period, but the Parliamentary Assembly of the Council of Europe appoints the judges. Judges are eligible for re-election. Since 1998, the judges have worked full time, and they retire at the age of 70.

Date: 2015-02-16; view: 664