European Court of Human Rights
Overview
 
The European Court of Human Rights (ECtHR; ) in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...

 is a supra-national court established by the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 and hears complaints that a contracting state has violated the human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 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
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...

 and all of its 47 member states are parties to the Convention.
The Court was established on the 21 January 1959 by virtue of Article 19 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 when eight signatories acknowledged the jurisdiction of the Court.
Encyclopedia
The European Court of Human Rights (ECtHR; ) in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...

 is a supra-national court established by the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 and hears complaints that a contracting state has violated the human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 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
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...

 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 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
European Commission of Human Rights
European Commission of Human Rights was a special tribunal.From 1954 to the entry into force of Protocol 11 of the European Convention on Human Rights, individuals did not have direct access to the European Court of Human Rights; they had to apply to the Commission, which if it found the case to be...

 was abolished.
The accession of new states to the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 or where well established case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

 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.

Protocol no.14 reforms

Protocol no.14 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention. 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. 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.

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
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

. 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.

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
Commissioner for Human Rights
The Commissioner for Human Rights is an independent institution within the Strasbourg-based Council of Europe, mandated to promote the awareness of and respect for human rights in member states...

 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
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

 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. 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.

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. 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

. 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
Parliamentary Assembly of the Council of Europe
The Parliamentary Assembly of the Council of Europe , which held its first session in Strasbourg on 10 August 1949, can be considered the oldest international parliamentary assembly with a pluralistic composition of democratically elected members of parliament established on the basis of an...

 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.

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.

Jurisdiction

The jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 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. Judges sit in Committee of three judges, Chambers of seven judges and a Grand Chamber of 17 judges to perform jurisdictional functions.

Applications by individuals

Applications by individuals against contracting states, alleging that the state violates their rights under the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

, 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

, a serious issue of general importance, or which may depart from previous case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

 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.

Inter-state cases

Any contracting state to the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 can sue another contracting state in the Court for alleged breaches of the Convention.

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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

, unless the matter relates to the content and scope of fundamental rights which the Court already considers.

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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 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.

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.

The European Court of Justice

The Court of Justice of the European Union
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...

 (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.

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.

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". On the other hand, the British Law Lord Hoffmann considered that the Court has not taken the doctrine of the margin of appreciation
Margin of appreciation
Margin of Appreciation is a concept the European Court of Human Rights has developed when considering whether a member state of the European Convention on Human Rights has breached the convention. The margin of appreciation doctrine allows the court to take into effect the fact that the Convention...

  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". He was joined in the criticism by the president of the Belgian Constitutional Court, Marc Bossuyt
Marc Bossuyt
Baron Marc Bossuyt obtained a Ph.D in Law at the University of Ghent in 1968 and a Certificate of international relations at Johns Hopkins University in Bologna in 1969...

.

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
Anatoly Kovler
Anatoly Kovler is a Tajikistani-born Russian lawyer, former Professor at the Academic Law University of the Russian Academy of Sciences and currently the Judge of the European Court of Human Rights in respect of Russia. His term will expire on 31 October 2012.-Early life:Kovler was born on 26...

, explaining his frequent dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

s, noted that "I dislike when the Court evaluates non-European values as reactionary (Refah v. Turkey)". The chairman of the Russian Constitutional Court Valery Zorkin
Valery Zorkin
Valery Dmitrievich Zorkin is the first and the current Chairman of the Constitutional Court of the Russian Federation.Zorkin was born on 18 February 1943 in a rural area of the Maritime Province. In 1964, he matriculated from the Law Department of the Moscow University, in which he lectured until...

, 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".

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".

Architecture

The building, which houses the court chambers and Registry (administration and référendaires), was designed by the Richard Rogers
Richard Rogers
Richard George Rogers, Baron Rogers of Riverside CH Kt FRIBA FCSD is a British architect noted for his modernist and functionalist designs....

 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 was then). Wide scale use of glass emphasises the 'openness' of the court to European citizens.

See also

  • African Court on Human and Peoples' Rights
    African Court on Human and Peoples' Rights
    The African Court on Human and Peoples' Rights was a regional court that was created initially to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights....

     – regional court established in 2006
  • European Court of Human Rights cases
  • Human rights in Europe
    Human rights in Europe
    The current human rights situation in Europe on the whole is believed by many to be good. However, there are several human rights alleged problems ranging from the treatment of asylum seekers through police brutality to various infringements of the judicial rights and freedoms of businesspersons...

  • Inter-American Court of Human Rights
    Inter-American Court of Human Rights
    The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States , which serves to uphold and...

     – regional court established in 1979
  • Margin of appreciation
    Margin of appreciation
    Margin of Appreciation is a concept the European Court of Human Rights has developed when considering whether a member state of the European Convention on Human Rights has breached the convention. The margin of appreciation doctrine allows the court to take into effect the fact that the Convention...

     – Legal doctrine of the European Court of Human Rights
  • Relationship between the European Court of Justice and European Court of Human Rights
    Relationship between the European Court of Justice and European Court of Human Rights
    The relationship between the European Court of Justice and European Court of Human Rights is an issue in European Union law and human rights law...


External links

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