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The European Court of Human Rights
The European Court of Human Rights (ECHR) is responsible for enforcing the Convention for the Protection of Human Rights and Fundamental Freedoms, or the European Convention on Human Rights (the “Convention”), which entered into force in 1953. The ECHR is one of three institutions created by the Council of Europe to oversee the implementation of the Convention. These institutions include the European Commission on Human Rights, (the “Commission,” established in 1954); the European Court of Human Rights; and the Committee of Ministers of the Council of Europe. The seat of the ECHR is in Strasbourg, France.
The ECHR has undergone significant reforms since its creation in 1959. As originally conceived, each Contracting State could decide whether or not they would allow complaints from individuals within their jurisdiction to be brought before the Court. In 1998, however, it became compulsory that all States recognize the right of individuals to bring their petitions before the ECHR. In addition, judgments from the Court were optional for Contracting States until 1998, when the ECHR’s jurisdiction became compulsory and binding for all Member States of the Council of Europe. Finally, prior to 1994, applicants could not submit their claims directly to the Court. Instead, complaints were lodged with the Commission, who then attempted to broker a friendly settlement between the parties concerned. If this proved impossible, the Commission would draw up a report stating its opinion of the case. The opinion would then be given to the Committee of Ministers to decide whether or not a violation of the Convention had occurred. If so, the Committee of Ministers was responsible for ensuring “just satisfaction” to the victim. The Commission and Contracting States had a three-month period after the transmission of the report to the Committee of Ministers in which to bring the case before the ECHR instead, so that they might obtain a binding judgment. If a judgment was given, the Committee of Ministers was responsible for ensuring its execution. This system was reformed in 1994, when the Court allowed cases to be brought directly to it for screening (rather than to the Commission), and further reformed in 1998 when the ECHR became a permanent court, the Commission was dismantled, and the Committee of Ministers’ adjudicative function was eliminated.
The modern ECHR is made up of a number of judges equal to the number of Contracting States (currently 47). Each government can submit three recommendations for judges, which are then elected by the Parliamentary Assembly of the Council of Europe. Judges are elected for a renewable term of six years. Though recommendations for judges are put forward by national governments, judges do not actually represent these governments in court.
The full Court elects a President, two Vice-Presidents, a Registrar, a Deputy Registrar and agrees on the Rules of the Court. In order to manage the workload, the Court divides itself into five Sections, each Section being as geographically and gender-balanced as possible. Judges are assigned to a Section for a period of three years. The two Vice-Presidents also serve as Presidents for two of the Sections, and the full Court elects the three remaining Section Presidents. 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.
An application can be lodged before the Court by a Contracting State (State application) of by an individual (individual application). Each application is assigned to a Section, and the Section President appoints a rapporteur for that particular case. The rapporteur examines the case to determine if it should be handled by the three-member review Committee, or given directly to the Chamber. If the case is given to the Committee, the members can unanimously declare a case inadmissible and no further examination is necessary. Applications deemed to be admissible, however, along with those referred directly to a Chamber, are reviewed by the Chamber. At any time, the Chamber may refer the case to the Grand Chamber if it “raises a serious question of interpretation of the Convention or where there is a risk of departing from existing case-law.” Parties to the case have one month to object to such a referral.
The first stage of the proceedings is usually written, and it is here that the Chamber decides the merits and final admissibility of the case. The Chamber may then request further evidence and observations by the parties involved, including requests for “just satisfaction” by the applicant. The President of the Chamber can also request submissions from Contracting States or individuals not directly party to the proceedings. The Chamber may decide to hold oral hearings on the case, though the majority of cases do not require this. During the entire process, the Court’s Registrar can work toward a friendly settlement between the two parties.
Judgments are decided by majority vote within the Chamber, though individual judges can attach separate opinions to the final decision. Both parties to the case then have three months to request that the case be referred to the Grand Chamber. Requests for referral are analyzed by a panel composed of the President of the Court and each of the Section Presidents, minus the Section President who presided over the case during the original Chamber judgment. If no request for referral is made, the Chamber’s judgment becomes final after the three-month period has passed. If the Grand Chamber accepts a request for referral, its judgment, which is made by majority vote, is final immediately. All judgments made by the ECHR are binding, and responsibility for execution of the judgments is given to the Committee of Ministers.
In addition to binding judgments, the Court also issues advisory opinions at the request of the Committee of Ministers. Advisory opinions handle legal questions regarding the interpretation of the Convention and its Protocols.
Over the past several years, the workload of the ECHR has continued to increase, resulting in long delays of judgment. In order to address this issue, a proposed amendment to the Convention has been put forward. If ratified, this Protocol would make it possible for several reforms to be brought about, including allowing a single judge to decide the admissibility of a case (rather than the committee of three that currently exists); allowing a three-judge Chamber (as opposed to a seven-judge Chamber) to decide a case that is very similar to one previously decided by the Court, and essentially due to the failure of a State to implement a judgment; ruling a case inadmissible if the applicant has not suffered “significant disadvantage;” allowing a Member State to be brought before the Committee of Ministers if it does not enforce a judgment; and allowing the Committee of Ministers to request an “interpretation” of a judgment.
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