Posted by The European Court of Human Rights (ECHR) in Strasbourg was established under the European Convention on Human Rights of 1950 to monitor compliance by Signatory Parties. The European Convention on Human Rights, or formally named Convention for the Protection of Human Rights and Fundamental Freedoms, is one of the most important conventions adopted by the Council of Europe. It was opened for signature in Rome on 4 November 1950 and entered into force in September 1953.
In addition to laying down a catalogue of civil and political rights and freedoms, the Convention set up a mechanism for the enforcement of the obligations entered into by Contracting States. Three institutions were entrusted with this responsibility: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (set up in 1959) and the Committee of Ministers of the Council of Europe, the latter organ being composed of the Ministers of Foreign Affairs of the member States or their representatives.
Under the Convention in its original version, complaints could be brought against Contracting States either by other Contracting States or by individual applicants (individuals, groups of individuals or non-governmental organisations). Recognition of the right of individual application was, however, optional and it could therefore be exercised only against those States which had accepted it.
Since the Convention’s entry into force thirteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12 and 13 added further rights and liberties to those guaranteed by the Convention, while Protocol No. 2 conferred on the Court the power to give advisory opinions. Protocol No. 9 enabled individual applicants to bring their cases before the Court subject to ratification by the respondent State and acceptance by a screening panel. The remaining Protocols concerned the organisation of and procedure before the Convention institutions.
The complaints were first the subject of a preliminary examination by the Commission, which determined their admissibility. Where an application was declared admissible, the Commission placed itself at the parties’ disposal with a view to brokering a friendly settlement. If no settlement was forthcoming, it drew up a report establishing the facts and expressing an opinion on the merits of the case. The report was transmitted to the Committee of Ministers.
The Court was instituted as a permanent court with full-time judges on 1 November 1998 (Protocol No. 11), replacing the then existing enforcement mechanisms, which included the European Commission of Human Rights (created in 1954) and the European Court of Human Rights, which had been created in 1950. Where the respondent State had accepted the compulsory jurisdiction of the Court, the Commission and/or any Contracting State concerned had a period of three months following the transmission of the report to the Committee of Ministers within which to bring the case before the Court for a final, binding adjudication. Individuals were not entitled to bring their cases before the Court. For a transitional period of one year (until 31 October 1999) the Commission continued to deal with the cases which it had previously declared admissible.
If a case was not referred to the Court, the Committee of Ministers decided whether there had been a violation of the Convention and, if appropriate, awarded “just satisfaction” to the victim. The Committee of Ministers also had responsibility for supervising the execution of the Court’s judgments.
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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 Signatory Parties, which currently stand at 47. Each judge is elected in respect of a Signatory Party by the Parliamentary Assembly of the Council of Europe. Despite this correspondence, however, there are no nationality requirements for judges (e.g. 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. Azerbaijan is represented by Khanlar Hajiyev in the court.
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 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.
Complaints of violations by member states are filed in Strasbourg, and are assigned to a Section. Each complaint is first heard by a committee of three judges, which may unanimously vote to strike any complaint without further examination. Once past committee, the complaint is heard and decided by a full Chamber. Decisions of great importance may be appealed to the Grand Chamber. Any decision of the court has the character of a recommendation and is therefore executed on the sole discretion of the affected member states.
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 an amendment to the Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 14. This new protocol, which requires universal ratification by all Council of Europe member states to come into force, makes a number of changes:
• A single judge can decide on a case’s admissibility. Before, three judges decided.
• Where cases are broadly similar to ones brought previously before the Court, and are essentially due to a member state failing to change their domestic law to correct a failing highlighted by that previous judgment, the case can be decided by three judges rather than the seven-judge Chamber.
• A case may not be admissible if it is considered that the applicant has not suffered ‘significant disadvantage’. However, this is not a ‘hard and fast’ rule.
• A member state can be brought before the court by the Committee of Ministers if that state refuses to enforce a judgment against it.
• The Committee of Ministers can ask the Court for an ‘interpretation’ of a judgment to help determine the best way for a member state to comply with it.
The building, which houses the court chambers and Registry (administration), 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 then was). Wide scale use of glass emphasizes the ‘openness’ of the court to European citizens.
Fargana Mammadkhanli,
Expert of Caspian Partnership for the future organization
