EUROPEAN COURT OF HUMAN RIGHTS

The European Court of Human Rights (ECtHR), often referred to informally as the "Strasbourg Court", was created to systematise the hearing of human rights complaints against States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the Council of Europe in 1950 (at present, all member states of the Council of Europe are also parties to the Convention, but there is no necessary connection between the two). The Court’s mission is to enforce the Convention for the Protection of Human Rights and Fundamental Freedoms, by ruling over complaints against human rights violations committed by States Parties, and brought to the Court either by other States Parties or by individuals subject to the jurisdiction of a State Party.

History and structure

The current incarnation of the court was instituted on November 1, 1998, replacing the then existing enforcement mechanisms, which included the European Commission of Human Rights (created in 1954) and the previous, limited Court of Human Rights, which was created in 1959.

The new court was the result of the ratification of Protocol 11, an amendment to the Convention, which was ratified in November 1998. Judges were subsequently elected by the Council of Europe, and the court was opened approximately one year later.

The court consists of a number of judges equal to the number of States Parties, which currently stand at forty-six. Each judge is elected in respect of a State Party; despite this correspondence, however, there are no requirements that each state be represented on the court, nor are there limits to the number of judges belonging to any nationality (e.g. Mr Caflish is a Swiss national elected in respect of Liechtenstein). Judges are assumed to be impartial arbiters, rather than representatives of any nation.

The court is divided into four "Sections", each of which consists of a geographic and gender-balanced selection of justices. The entire court elects a President and four Section Presidents, two of whom also serve as Vice-Presidents of the court. All terms last for three years.

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 decisions of the court are binding on the member states.

It is the role of the Committee of Ministers to supervise the execution of court judgements, though they have no formal means of forcing member countries 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 heard and there was a significant backlog. For example, according to the Human Rights Information Bulletin (issued by the Council of Europe), between 1 November 2003 and 29 February 2004 the Court dealt with 7315 cases, of which 6255 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: The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms. ...

A single judge can decide on a case’s admissibility. Before, three judges decided.

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 judgement 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.

Notable cases

For the first time since the Russian military invaded Chechnya in 1999, the court has agreed to hear cases of human rights abuse brought forward by Chechen civilians against Russia.

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. Legally, Ireland v. United Kingdom is notable since the British government had already publicly admitted and promised to refrain from all the violations the court found it guilty of. The UK tried to argue that having done so, the Irish litigation was pointless, relying on principles of international law accepted by the ICJ; however, the ECHR held that even though the UK had already made these admissions and undertakings, the case could still be considered, since ruling on it would serve the purposes of the development of Convention law.