|European Court of Human Rights|
Signatories to the European Convention on Human Rights
|Authorized by||European Convention on Human Rights|
|Appeals to||Grand Chamber of the European Court of Human Rights|
|Number of positions||47 judges, one from each of the 47 member states of the Council of Europe|
|Currently||Róbert Ragnar Spanó|
|Since||2013 (judge), 2020 (President)|
The European Court of Human Rights (ECHR or ECtHR; French: Cour européenne des droits de l'homme), also known as the Strasbourg Court, is a supranational or international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the convention and its protocols.
An application can be lodged by an individual, a group of individuals, or one or more of the other contracting states. Aside from judgments, the court can also issue advisory opinions. The convention was adopted within the context of the Council of Europe, and all of its 47 member states are contracting parties to the convention.
The court was established on 21 January 1959 on the basis of Article 19 of the European Convention on Human Rights when its first members were elected by the Parliamentary Assembly of the Council of Europe. Initially, access to the court was restricted by the European Commission of Human Rights, abolished in 1998. The court kept a low profile during its first years and did not accumulate much case law, first finding a violation in Neumeister v Austria (1968). The convention charges the court with ensuring the observance of the engagement undertaken by the contracting states in relation to the convention and its protocols, that is ensuring the enforcement and implementation of the European Convention in the member states of the Council of Europe.
The jurisdiction of the court has been recognized to date by all 47 member states of the Council of Europe. On 1 November 1998, the court became a full-time institution and the European Commission of Human Rights, which used to decide on admissibility of applications, was abolished by Protocol 11.
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 filed in the court. The efficiency of the court was threatened seriously by the large accumulation of pending applications.
In 1999, 8,400 applications were allocated to be heard. In 2003, 27,200 cases were filed and the number pending rose to approximately 65,000. In 2005, the court opened 45,500 case files. In 2009, 57,200 applications were allocated, with 119,300 pending. At the time, more than 90 per cent of applications were declared to be inadmissible, and the majority of cases decided--around 60 per cent of the decisions by the court--related to what is termed repetitive cases: where the court has already delivered judgment finding a violation of the European Convention on Human Rights or where well established case law exists on a similar case.
Protocol 11 was designed to deal with the backlog of pending cases by establishing the court and its judges as a full-time institution, by simplifying the procedure and reducing the length of proceedings. However, as the workload of the court continued to increase, the contracting states agreed that further reforms were necessary and in May 2004, the Council of Europe Committee of Ministers adopted Protocol 14 to the European Convention on Human Rights. Protocol 14 was drafted with the aim of reducing the workload of the court and that of the Committee of Ministers of the Council of Europe, which supervises the execution of judgments, so that the court could focus on cases that raise important human rights issues.
Judges are elected for a non-renewable nine-year term. The number of full-time judges sitting in the court is equal to the number of contracting states to the European Convention on Human Rights, currently 47. The convention requires that judges be of "high moral character" and have qualifications suitable for high judicial office, or be jurists of recognised competence.
Each judge is elected by majority vote in the Parliamentary Assembly of the Council of Europe from among three candidates nominated by each contracting state. Judges are elected whenever a sitting judge's term has expired or when a new state accedes to the convention. The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected or until the cases in which they sit have come to an end.
Judges perform their duties in an individual capacity and are prohibited from having any institutional or similar ties with the state in respect of which 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. Judges cannot hear or decide a case if they have a familial or professional relationship with a party. A judge can be dismissed from office only if the other judges decide, by a two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges enjoy, during their term as judges, the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe.
The plenary court is an assembly of all of the court's judges. It has no judicial functions. It elects the court's 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.
The jurisdiction of the court is equivalent to the member states of the Council of Europe, which is all European states except Belarus, the Vatican City, and the predominantly Central Asian Kazakhstan. The jurisdiction of the court is generally divided 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. A committee is constituted by three judges, chambers by seven judges, and a Grand Chamber by 17 judges.
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. Although the official languages of the court are English and French, applications may be submitted in any one of the official languages of the contracting states. An application has to be made in writing and signed by the applicant or by the applicant's representative.
Once registered with the court, the case is assigned to a judge rapporteur, who can make a final decision that the case is inadmissible. A case may be inadmissible when it is incompatible with the requirements of 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 from 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 is referred to a chamber of the court which, unless it decides that the application is inadmissible, communicates the case to the government of the state against which the application is made, asking the government to present its observations on the case.
The chamber of the court then deliberates and judges the case on its admissibility and its merits. Cases that 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.
Any contracting state to the European Convention on Human Rights can sue another contracting state in the court for alleged breaches of the convention, although in practice this is very rare. Until now only four interstate cases have been decided by the court:
Ongoing as of 2020:
The Committee of Ministers may, by majority vote, ask the court to deliver an advisory opinion on 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.
ECtHR rulings have erga omnes effects (that is, they are potentially binding on all member states), because the court "determines issues on public-policy grounds in the common interest, thereby extending human rights jurisprudence throughout the community of European Convention States", although erga omnes effect "is not regarded by all States Parties as a legal requirement".
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 on the facts or issues raised in the application and contracting states are required to provide the court with all necessary assistance for this purpose.
The European Convention on Human Rights requires all hearings to be in public, unless there are exceptional circumstances justifying the holding of a private hearing. In practice the majority of cases are heard in private 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. However, in many cases, a hearing is not held.
The judgment of the Grand Chamber is final. Judgments by the chamber of the court become final three months after they are issued, unless a reference to the Grand Chamber for review or appeal has been made. If the panel of the Grand Chamber rejects the request for referral, the judgment of the chamber of the court becomes final. The Grand Chamber is made up of 17 judges: the court's President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots. Grand Chambers include a public hearing, which is transmitted as a webcast on the ECHR site. After the public hearing, the judges deliberate.
The court's chamber decides both issues regarding admissibility and merits of the case. Generally, both these issues are dealt with in the same judgment. In final judgments 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 expenses incurred in domestic courts and the court in bringing the case.
The court's judgments are public and must contain reasons justifying the decision. Article 46 of the convention provides that contracting states undertake to abide by the court's final decision. On the other hand, advisory opinions are, by definition, non-binding. The court has to date decided consistently that under the convention it has no jurisdiction to annul domestic laws or administrative practices which violate the convention.
The Committee of Ministers of the Council of Europe is charged with supervising the execution of the court's judgments. The Committee of Ministers oversees the contracting states' changes to their national law in order that it is compatible with the convention, or individual measures taken by the contracting state to redress violations. Judgments by the court are binding on the respondent states concerned and states usually comply with the Court's judgments.
Chambers decide cases by a majority. Any judge who has heard the case can attach to the judgment a separate opinion. This opinion can concur or dissent with the decision of the court. In case of a tie in voting, the President has the casting vote.
The court may award pecuniary or non-pecuniary damages, called "just satisfaction". The awards are typically small in comparison to verdicts by national courts and rarely exceed 1,000 euros. Non-pecuniary damages are more closely correlated to what the state can afford to pay than the specific harm suffered by the complaintant. In some cases, repeated patterns of human rights violations lead to higher awards in an effort to punish the responsible state, but paradoxically in other cases they lead to lower awards, or the cases being struck entirely.
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The ECtHR uses the doctrine of margin of appreciation, referring to the member states' rights to set moral standards within reason. Over time, the court has narrowed the margin of appreciation (to the point of a "demise" of margin of appreciation).
Narrowing margin of appreciation is a target of criticism for those who believe that the ECtHR should minimize its role, especially from the United Kingdom. The British Law Lord, Lord Hoffmann argued in 2009 that the court was "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".
Proponents of a stronger recognition of margin of appreciation cite local conceptions of human rights, specific to the context of each country and its culture, and the risk of handing down judgements that lack local cultural and grassroots legitimacy. Critics argue that the principle of "emerging consensus" of the member states on which the ECtHR operates is fundamentally flawed, because such a consensus often relies on trends, and historically in many instances social and political consensus was retrospectively acknowledged to have been wrong. Such an approach is accused of risking to stigmatize and coerce the few dissenting countries, encouraging a pack mentality. Furthermore, critics argue that the ECtHR has claimed that such consensus exists even when objectively it did not, due to the judicial activism of its judges. It has been said that in failing to distinctly define how a consensus is reached reduces its legitimacy. Furthermore, as the ECtHR grows, the consensus between the members diminishes.
However, the margin of appreciation doctrine has also come under sharp criticism from jurists and academics who say that it undermines the universal nature of human rights.
The ECtHR's primary method of judicial interpretation is living instrument doctrine, meaning that the text of the ECHR "must be interpreted in the light of present-day conditions" rather than the intent of its framers. One area that this doctrine has changed ECtHR jurisprudence over time is with regard to differential treatment exclusively based on ethnicity, gender, religion, or sexual orientation, which it is increasingly likely to label unjustified discrimination. In addition, with the proliferation of alternative family arrangements, the court has expanded its definition of family under Article 8, for example to same-sex couples, as in Oliari and Others v Italy (2015). Although defenders argue that living instrument doctrine is necessary for the court to stay relevant and its rulings to adapt to the actual conditions, such interpretations are labeled overreach or judicial activism by critics.
The president of the Belgian Constitutional Court, Marc Bossuyt, in 2014 for expanding the guarantees of the treaty to issues that, according to Bossuyt, were not included in the treaty nor intended by the framers. Bossuyt especially criticized the court's handling of asylum cases with respect to articles 3 and 6 of the treaty.Lord Jonathan Sumption argues that the ECtHR is overstepping its mission upon which it was founded; he claims that originally the court was set up to rule against torture and genocide, but it has consistently expanded its jurisprudence in a manoeuvre of "mission creep", to the point where the judges are effectively creating new laws for citizens, rather than leaving law making to their own parliaments.[better source needed]
The Court of Justice of the European Union (CJEU) is not related to the European Court of Human Rights.
However, since all EU states are members of the Council of Europe and so are parties to the Convention on Human Rights, there are concerns about consistency in case law between the two courts. The CJEU refers to the case law of the European Court of Human Rights and treats the Convention on Human Rights as if it were part of the EU's legal system since it forms part of the legal principles of the EU member states.
Even though its member states are party to the convention, the European Union itself is not a party, 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. That would mean that the Court of Justice is bound by the judicial precedents of the Court of Human Rights's case law and so is subject to its human rights law, which would avoid issues of conflicting case law between these two courts.
Most of the contracting parties to the European Convention on Human Rights have incorporated the convention into their own national legal systems, either through constitutional provision, statute or judicial decision. The ECtHR increasingly considers judicial dialogue with national courts to be a "high priority", especially when it comes to implementation of judgements.
In 2015, Russia adopted a law allowing it to overrule judgements from the ECtHR, codifying an earlier Russian Constitutional Court decision which ruled that Russia could refuse to recognize an ECtHR decision if it conflicted with the Constitution of Russia, and in 2020 Russia made constitutional amendments stipulating that the Russian Constitution supersedes international law. Other countries have also moved to restrict the binding nature of the ECtHR judgments, subject to the countries' own constitutional principles. In 2004, the Federal Constitutional Court of Germany ruled that judgments handed down by the ECtHR are not always binding on German courts.
A 2016 book characterizes Austria, Belgium, Czechia, Germany, Italy, Poland, and Sweden to be mostly friendly to ECtHR judgements; France, Hungary, the Netherlands, Norway, Switzerland, and Turkey to be moderately critical; the United Kingdom to be strongly critical and Russia to be openly hostile. In 2019, south Caucases states were judged partially compliant in a law review article.
The ECtHR is widely considered to be the most effective international human rights court in the world. According ot Michael Goldhaber, "Scholars invariably describe it with superlatives and with good reason as the Court has undoubtedly reached a status of standard-setter for human rights protection globally".
The court has faced challenges due to lacking enforcement powers, which leads to some states ignoring ECtHR verdicts and continuing practices judged to be human rights violations. The number of non-implemented judgements rose from 2,624 in 2001 to 9,944 at the end of 2016, 48% of which had gone without implementation 5 years or more. In 2016, all but one of the 47 member countries of the Council of Europe had not implemented at least one ECtHR verdict in a timely fashion, although most non-implemented verdicts concern a few countries: Italy (2,219), Russia (1,540), Turkey (1,342), and Ukraine (1,172). More than 3,200 non-implemented judgements "concerned violations by security forces and poor detention conditions". Council of Europe Commissioner for Human Rights, Nils Mui?nieks, stated: "Our work is based on cooperation and good faith. When you don't have that, it's very difficult to have an impact. We kind of lack the tools to help countries that don't want to be helped." Russia systematically ignores ECtHR verdicts, paying compensation in most cases but refusing to fix the problem, leading to a high number of repeat cases. Russian legislation has set up a specific fund for paying the claimants in successful ECtHR verdicts.
Notable non-implemented judgements include:
Another issue is delayed implementation of judgements.
The caseload of the court expanded rapidly after the fall of the Soviet Union, growing from fewer than 8,400 cases filed in 1999 to 57,000 in 2009. Most of these cases concern nationals of the former Eastern Bloc where there is less trust in the court system. In 2009, the court had a backlog of 120,000 cases which would have required 46 years to process at the previous rate, leading to reforms. According to the BBC, the court began "to be seen as a victim of its own success".
Between 2007 and 2017, the number of cases dealt with each year was relatively constant (between 1,280 and 1,550); two-thirds of cases were repetitive and most concerned a few countries: Turkey (2,401), Russia (2,110), Romania (1,341), and Poland (1,272). Repetitive cases indicate a pattern of human rights violations in a given country. The 2010 Interlaken Declaration stated that the court would reduce its caseload by cutting back on the number of repetitive cases it dealt with. Pending applications peaked at 151,600 in 2011 and were reduced to 59,800 by 2019.
Merris Amos observes that the court "grants to the disenfranchised and those marginalized and possibly even excluded from mainstream society an opportunity to have their human rights claims considered by a specialist court, independent of national political pressures at minimal cost". However, access to justice may be de facto impeded by various factors.