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The structure and the composition of the European Court of Human Rights

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.

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. Each Section is further divided into Chambers of seven judges, which are responsible for giving judgments on the vast majority of cases brought before the Court. Committees of three judges are also created within each Section in order to determine the admissibility of individual cases. Cases that are exceptionally serious or deal with an issue of general importance are heard by the Grand Chamber of the Court, which is composed of seventeen judges including the President, Vice-Presidents, and Section Presidents. Other Chambers can refer cases to the Grand Chamber at any stage in the proceedings prior to the judgment, and those party to individual cases can request that their case be referred to the Grand Chamber within three months after the delivery of a judgment.

14.Enforcement of the European Court of Human Rightsí judgments

According to Article 46(1) of the Convention, Member States of the Council of Europe undertake to ďabide by the final judgments of the Court in any case to which they are parties.Ē The legally binding nature of the Courtís judgments and the developed machinery of enforcement supervision is a unique feature of European human rights. The Member States of the Council of Europe have, in principle, three obligations following an adverse ruling from the Court: (1) to make payment of compensation, if awarded; (2) if necessary, to take further individual measures in favour of the applicant, that is to put a stop to the violation found by the Court and to place the applicant, as far as possible, into the situation existing before the breach (restitutio in integrum), (EUROPEAN COURT OF HUMAN RIGHTS, Akdivar v. Turkey (Article 50), 1998, para. 47); and (3) to take measures of a general character in order to ensure non-repetition of similar violations in the future (EUROPEAN COURT OF HUMAN RIGHTS, Broniowski v. Poland, 2004, para. 193).

As discussed in more detail below, individual measures may entail, for example, a re-examination of the applicantís case by domestic courts, lifting restrictive measures imposed in violation of the Convention, taking positive administrative steps to enable the full enjoyment of rights by the applicant, releasing the applicant from custody, etc. General measures may not be required in cases where a violation found by the Court is of an isolated or exceptional nature (LAMBERT-ABDELGAWAD, 2008, p. 27). However, where a violation is rooted in deficiencies within the domestic legal order which have the potential of affecting a large number of persons, the State is required to engage in legislative or policy reform or take other measures to eliminate such a problem and its effects.

The ECtHR systemís approach to determining the scope and content of the remedial measures required, following a Convention violation finding, is different to that adopted by another major regional human rights system: namely the Inter-American Court of Human Rights.1 Relying on the principle of subsidiarity, under which the ECHR is subsidiary to domestic legal orders, the Court has traditionally been reluctant to specify necessary remedial measures other than compensation, in its judgments.2 This shifts the determination of the particular content of enforcement measures to the Member States, supervised and assisted by the Committee of Ministers (CoM) and, thus, to the political arena.

From an effective execution of judgments standpoint, the Court has often been criticised by other Council of Europe bodies and by academics for this reluctance to specify the remedial measures necessitated by a violation (COUNCIL OF EUROPE, 2000b, para. 5). For example, Steven Greer indicates that it is greatly important that the Court identifies precisely what steps need to be undertaken to comply with its judgments. This is because, if it were to do so, (a) enforcement would be less open to political negotiation within the CoM; (b) it would be easier to monitor execution objectively; and (c) a failure to comply effectively is easier to enforce through the national legal process as an authoritatively confirmed violation (GREER, 2006, p. 160-161).

Turning to the enforcement framework existing in the Council of Europe, Article 46(2) of the Convention provides the Committee of Ministers with powers to supervise the execution of the Courtís judgments by States. Generally, for each case (or group of similar cases) the Committee examines the remedial measures suggested by the State, discusses the issue during special human rights meetings of delegates from all Member States, and adopts a final resolution once it is satisfied that the judgment in question is complied with. The Committee has recently decided to engage in more intensive enforcement supervision for particularly important judgments, such as those revealing a complex and systemic problem within the legal system of a Member State, or those requiring urgent individual measures to prevent further harms to the applicant (COUNCIL OF EUROPE, 2011b). This enhanced supervision implies a more proactive approach on the part of the Committee in assisting States to identify the content of remedial measures required and, where necessary, putting more pressure on the State concerned to comply with an adverse judgment swiftly.

Date: 2015-12-18; view: 434

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