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European Court of Human Rights
Established1959 (initially)
1998 (permanent)
LocationStrasbourg, France
Authorized byEuropean Convention on Human Rights
Appeals toGrand Chamber of the European Court of Human Rights
Number of positions47 judges in respect of 47 member states of the Council of Europe
Websitehttp://echr.coe.int
President
CurrentlyJean-Paul Costa
Since1998
Jurist term ends2010
File:European court of human rights.JPG
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 to the Convention has violated the human rights enshrined in the Convention. 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

A piece of the Berlin Wall in front of the European Court of Human Rights

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 209 57,200 applications were allocation, 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 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention.

Owing to its large workload some cases were taking up to five years before being decided and there was a significant backlog.

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 the drafting of a protocol to the convention — protocol 14 — which was finally ratified by all member states on 1 June 2010. The entrance into force of protocol 14 now means the following:

While Alex Bailin and Alison Macdonald opined in the Guardian that protocol 14 would help enable the court to force states to comply with human rights obligations,[3] 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'.[4]


Judges

Main article: List of judges of the European Court of Human Rights

The Court has a number of full-time judges 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 six year 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.[5]

Prior to the adoption of Protocol 14, judges were elected to six-year terms and could be re-elected. Now, though, in an effort to improve judges' impartiality, they are elected to a single, non-renewable, nine year term.[6]

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.[7]

The first President of the court was Luzius Wildhaber.

The Court is divided into five "Sections", each of which consists of a geographic and gender-balanced selection of justices. The entire Court elects a President and five Section Presidents, two of whom also serve as Vice-Presidents; 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.

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.[8] Judges sit in Committee of three jduges, Chambers of seven judges and a Grand Chamber of 17 judges to perform juristictional functions.[9]

By the time Protocol No. 11 entered into force on 1 November 1998 establishing a full-time Court and opening up direct access for 800 million Europeans, the Court had delivered 837 judgments. By the end of 2005 it had delivered 5,968 judgments.

Between 2006 and 2010, Russia had been the only one of 47 participating states to refuse to ratify Protocol 14, which was intended to accelerate the court’s work, partly by reducing the number of judges required to make important decisions. 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.[10]

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. If the judge rapporteur decides that the claim cannot be proceeded with, the case is referred to a Committee of three judges, which can, by unanimous vote, declare the case inadmissible, strike the case out. This decision is final and cannot be appealed. Referral to Committee may occur when the case 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.[11]

Inter-state cases

Any contracting state to the European Convention on Human Rights can sue another contracting state in the Court for alledged breaches of the Convention.[12]

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.[13]

Procedure and decisions

Court room of the ECtHR

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.[14]

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. Artcile 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 charges 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.[15]

Relationship with other courts

The European Court of Justice

Main article: Relationship between the European Court of Justice and European Court of Human Rights

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 this way the issue 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. Incorporation, coupled with the entry of force of Protocol No. 11, has dramatically enhanced the status of Convention rights, and the impact of the case law of European Court of Human Rights. National judges, elected officials, and administrators are now under increasing pressure to make Convention rights effective within national systems.[16]

Architecture

Main article: European Court of Human Rights building

The Richard Rogers Partnership designed European Court of Human Rights

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

See also

Notes

  1. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 115. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  2. ^ "Protocol no.14 Factsheet: The reform of the European Court of Human Rights" (PDF). Council of Europe. May 2010. p. 1. Retrieved September 2011. ((cite web)): Check date values in: |accessdate= (help)
  3. ^ A law with sharper teeth
  4. ^ European Court on Human Rights: Imminent reforms must not obstruct individuals' redress for human rights violations by Amnesty International News Service No: 120 11 May 2004
  5. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 115. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  6. ^ "Protocol 14 Fact Sheet"
  7. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 115. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  8. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 115. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  9. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 116. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  10. ^ NY Times: Russia Ends Opposition to Rights Court
  11. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 116. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  12. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 116. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  13. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 116. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  14. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. pp. 116–117. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  15. ^ Smith, Rhona K.M. (2005). The essentials of Human Rights. Hodder Arnold. p. 117. ISBN 0340815744. ((cite book)): Unknown parameter |first 2= ignored (|first2= suggested) (help); Unknown parameter |last 2= ignored (|last2= suggested) (help)
  16. ^ Helen Keller and Alec Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, 2008).

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