European Court of Human Rights (ECtHR)
The European Court of Human Rights (ECtHR), the seat of which is in Strasbourg at the Council of Europe (institutional aspects), is the main instrument for the (subsidiary) ‘collective enforcement’ (ECtHR, 23 July 1968, Belgian Language Case, Series A, No 6, § 10) of rights guaranteed by the European Convention on Human Rights (ECHR; human rights and fundamental rights (ChFR and ECHR)). The ECHR is the functional equivalent of a pan-European catalogue of fundamental rights, so the ECtHR has a quasi-constitutional role that may be compared to part of the role played by the European Court of Justice (ECJ). Yet there are considerable differences between the two courts. In the case of the ECtHR, there is no provision for a preliminary reference procedure. It can only deal with (in practice, extremely rare) inter-state cases (Art 33 ECHR) and individual applications after the exhaustion of domestic remedies (Art 34). Its competence to give advisory opinions at the request of the Council of Europe Committee of Ministers does not include the content or extent of the rights guaranteed by the ECHR (Art 47) and accordingly has virtually no significance. Moreover, the ECtHR stresses in its case law that its task is not to examine the challenged provisions of domestic law in abstracto for their compatibility with the Convention and that it must limit itself as far as possible to an examination of the actual questions raised by the case before it (ECtHR 27 March 1962, De Becker v Belgium, Series A, no 4, § 14). Accordingly, compared with the approach of the ECJ, there is a greater emphasis on the protection of individual rights in the concrete case at hand and a correspondingly less far-reaching trend towards the express formulation of judge-made rules of law.
Today, the contracting states to the ECHR are all the Member States of the Council of Europe. The European Community on the other hand has so far not been a party, so that no complaints (referred to as ‘applications’ in the ECHR terminology) can be filed against it. However, the Treaty of Lisbon enables the European Union to accede to the ECHR. Applications against EU Member States concerning violations of the Convention originating from legal acts of the Community or Union are possible, but in the interests of ‘international cooperation’ the ECtHR applies a (rebuttable) presumption that the legal protection afforded by the ECJ is equivalent to the protection it provides itself (Bosphorus v Ireland – ECtHR App No 45036/98).
2. Historical background
Accession to the ECHR (which entered into force on 3 September 1953) was, originally, not necessarily linked to accepting the Court’s jurisdiction vis-à-vis the contracting state concerned. Accordingly, the ECtHR did not begin its work until 1959, after the requisite number of contracting states had accepted its jurisdiction. Initially (and until the 1980s) it was rare for the Court to deliver judgments. The main task of supervising compliance with the ECHR was undertaken by the European Commission of Human Rights (‘the Commission’, later abolished when Protocol no 11 came into force on 1 November 1998). The Commission dealt from the outset with numerous individual applications, most of which were declared inadmissible since one reason for inadmissibility was (and remains) the fact that a complaint is manifestly ill-founded. These Commission decisions constituted the main source of case law on the ECHR in the early years.
The system of individual applications is the reason for the success of European human rights protection. However, the Commission and, later, the ECtHR, became victims of their success, witnessing a steady rise in the number of applications. Consequently, Protocol no 11 undertook a fundamental reorganization: the then-existing Commission and Court were merged into a single body—the present ECtHR—whose members became full-time judges, and acceptance of the ECtHR’s jurisdiction became compulsory for all contracting states. The statistics on the increase in the number of applications are impressive (or alarming): in 1995, 3,500 new applications were assigned to a decision-making body (at that time, the Commission); in 1999, after the entry into force of Protocol no 11, the figure was 8,400. In 2010, there were 61,300, 28.9 per cent of them directed against the Russian Federation, 10.9 per cent against Turkey, 8.6 per cent against Romania, 7.5 per cent against Ukraine, 7.3 per cent against Italy and 4.6 per cent against Poland. At the end of 2010, nearly 140,000 allocated applications were pending before the Court.
The number of judges corresponds to the number of contracting states (currently 47), although it is possible that a judge does not possess the nationality of the state for which he or she has been elected (Liechtenstein is currently represented by a Swiss judge). Judges are independent and, pursuant to Art 21 ECHR, sit on the Court in their individual capacity. The same Article states that the prerequisites for office are that judges shall be ‘of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence’. In practice, national judges, public prosecutors, high-ranking officials of government departments, professors and attorneys are proposed as ECtHR judges by the contracting states. Judges are chosen by the Council of Europe Parliamentary Assembly from a list containing three proposals made by the government of the state concerned. In recent times, the Assembly has begun to conduct a critical examination of the national lists of candidates and to independently select judges after the candidates have been interviewed by a parliamentary Commission—without allowing itself to be influenced by the preferences of the government concerned. It also insists on a balanced gender distribution of judicial posts, which has led to difficulties in drawing up lists of candidates in some of the smaller contracting states (the first advisory opinion of the ECtHR, of 12 February 2008, concludes that the Assembly’s rigid practice of rejecting a list on the sole ground that it does not contain the name of a female candidate is not compatible with the ECHR). Initially the term of office was six years and a judge could be re-elected; since the entry into force of Protocol no 14 in 2010, judges are elected for a period of nine years and cannot be re-elected. Every three years the composition of the Court is partially renewed.
The President of the ECtHR is elected by the plenary Court. The Presidents so far have been Lord McNair (United Kingdom, 1959–65), René Cassin (France, 1965–68), Henri Rolin (Belgium, 1968–71), Sir Humphrey Waldock (United Kingdom, 1971–74), Giorgio Balladore Pallieri (Italy, 1974–80), Gérard Wiarda (Netherlands, 1981–85), Rolv Ryssdal (Norway, 1985–98), Rudolf Bernhard (Germany, 1998), Luzius Wildhaber (Switzerland, 1998–2007), Jean-Paul Costa (France, 2007–2011) and Sir Nicolas Bratza (United Kingdom, elected in July 2011).
The decision-making bodies within the ECtHR are Single Judges, Committees of three judges, Chambers and the Grand Chamber. The vast majority of the Court’s decisions are taken by the Committees (and, since the entry into force of Protocol no 14, by Single Judges), which have taken over the function of screening applications carried out by the Commission before 1998. The Committees can reject an application as inadmissible by unanimous decision); their decisions do not contain detailed reasons and are not published. This procedure of summary rejection applies to the vast majority of applications decided by the Court. In 2010, it applied to 38,576 out of 41,183 applications decided during that year, and of the 61,300 new applications brought in 2010, 46,750 were identified as Single Judge cases likely to be declared inadmissible. Applications with real prospects of success are dealt with by the Chambers or the Grand Chamber, although the Committees are able to rule on the merits of applications if the questions raised are covered by the Court’s established case law (so-called ‘repetitive’ cases). In 2010, judgments were delivered on the merits of applications in 2,607 cases; 673 applications were declared inadmissible by the Chambers or the Grand Chamber, and in the remaining cases the application was struck off the list (for various reasons but mainly because a friendly settlement had been reached between the applicant and the contracting state against which the application had been directed). Chambers of seven judges are formed by the Court’s five sections to deal with individual cases. All the judges, including the President of the Court, are distributed among the sections according to geographical criteria and care is taken to ensure geographical balance. The Chamber is made up of its President and the judge of the contracting state against which the application is directed as well as five other judges. If the judge of the contracting state concerned is unable to participate in the decision, rule 29 of the Rules of Court provides for that state to appoint an ad hoc judge. The Grand Chamber of 17 judges delivers judgments (and in rare cases also decisions on the admissibility of an application) in a small number of particularly important cases. In 2010, it delivered judgments or decisions in 18 cases. Despite (or perhaps because of) this small number of decided cases, the main orientation of the Court’s case law is determined by the Grand Chamber. However, it is still rare for the Grand Chamber to deliver judgments in cases involving private law.
The Court Registry plays a particularly important role. Owing to the extremely high number of individual applications, it is not practicable for a judge personally to work on all applications, so the Registry, which has more than 300 legal staff from all the contracting states, processes numerous cases and prepares the remainder for the judge rapporteur. In contrast to the Court of Justice and the General Court of the European Union, the ECtHR has no system of personal legal secretaries, so it is the Registry that helps the judges with the preparation of the texts of decisions and judgments. This type of division of labour is essential for a court whose decision-making bodies now handle more than 60,000 new cases each year.
Proceedings before the ECtHR are governed by the ECHR (with more detailed rules being, in part, set forth in the Rules of Court). The Court can only be asked to deal with a case when an application is made. Apart from the few inter-state applications, applications will be individual applications which can be filed by any natural person, ‘non-governmental organization’ (according to the Court’s case law, this term can cover both juridical persons, especially companies, as well as non-incorporated associations) or groups of persons claiming to be a victim of a contracting state’s violation of one of the rights guaranteed by the ECHR. It is important to observe the rule—based on general international law—of exhaustion of domestic remedies before a case can be brought before the ECtHR: it is a fundamental principle that the alleged violation of the ECHR must, at least in substance, have been unsuccessfully brought before all the domestic courts (up to and including the constitutional or equivalent court). This is a manifestation of the subsidiarity of the application to the ECtHR. If all domestic remedies have been exhausted, the application must be received by the ECtHR within six months. A simple letter to the Registry is sufficient for bringing a case, but for it to be processed by the Court an application form must subsequently be submitted in accordance with rule 47 of the Rules of Court. The language in which the application is drawn up can be freely chosen from among the official languages of all the contracting states, but from the moment when the contracting state is informed of the application (which presupposes that the application has not already been declared inadmissible) the proceedings must be conducted in either of the Council of Europe’s two official languages, which are English and French. Only in exceptional cases is it possible to depart from this rule (rule 34 of the Rules of Court). There is no requirement to be represented by a lawyer in the initial stages of the proceedings (rule 36 of the Rules of Court). The applicant’s identity is not usually treated as confidential, so that the ECtHR’s decisions and judgments are published with the full name(s) of the applicant(s)—and are normally cited with reference to those names.
Applications for the adoption of ‘interim measures’ may be made under rule 39 of the Rules of Court. The decision on such measures is taken by the Chamber or its President. Interim measures are binding on contracting states (ECtHR App Nos 46827/99 and 46951/99 – Mamatkulov and others v Turkey). The number of requests for interim measures has itself grown exponentially over the last few years.
After the application is received, the case is assigned to one of the ECtHR’s decision-making bodies. Applications assigned to a Chamber can be referred by this Chamber to the Grand Chamber in the absence of an objection by one of the parties. The referral to the Grand Chamber presupposes that the case raises a serious question affecting the interpretation of the Convention or that the Chamber is considering departing from an earlier judgment of the Court. Oral proceedings before the Chambers are rare, and it is normal for merely written proceedings to be conducted. The outcome of the proceedings may be either a decision of the Court on the inadmissibility of the application (owing to incompatibility with the Convention or the fact that the application is manifestly ill-founded (Art 35(3) ECHR)—which has in the past been the most common reason for a declaration of inadmissibility) or a judgment on the merits. A new ground for declaring a case inadmissible, introduced in 2010 by Protocol no 14, is to be the lack of a ‘significant disadvantage’ for the applicant ‘unless respect for human rights […] requires an examination of the application on the merits.’ If the application is declared well-founded, the operative part of the judgment in principle only states that the Convention has been violated (declaratory judgment) and ‘if necessary, afford(s) just satisfaction to the injured party’ (Art 41 ECHR).
Within three months of the date of a judgment, any party to the case may request that the case be referred to the Grand Chamber, and a panel of five judges of the Grand Chamber will decide on the merits of such a request. Its acceptance presupposes that the case raises a serious question of fundamental importance. If the referral is accepted, the Grand Chamber conducts a full review of the entire case and issues a final decision on the application. It is possible for individual judges to deliver separate opinions both in the case of judgments of the Chambers and of the Grand Chamber.
It is not the ECtHR but the Council of Europe Committee of Ministers that is responsible for supervising the actual execution of any individual or general measures required by a final judgment (Art 46(2) ECHR). However, in the Broniowski case (App No 31443/96) the Court decided that in certain cases involving a ‘systematic’ violation of the Convention which affects numerous individuals—and potential applicants—(80,000 in the Broniowski case), ‘pilot judgments’ delivered by the ECtHR itself can provide the contracting state with precise guidelines for remedying the situation. Here, subsidiarity is limited as a matter of necessity.
The duration of the proceedings before the ECtHR is still too long in the vast majority of cases. This is actually paradoxical: the guarantee enshrined in Art 6(1) ECHR that a judicial decision will be delivered ‘within a reasonable time’ cannot be applied to these proceedings themselves. Periods of five years or more are not uncommon in those cases that actually lead to a judgment. The Court is aware of this problem and its Presidents regularly emphasize that the hopes pinned on the 1998 abolition of the Commission and reform of the Court have not been fulfilled and urge that more far-reaching reforms be put in place and effectively applied.
5. The future
There is a general consensus that the future of the ECtHR as an effective court depends on the success of those further reforms. However, there is also a tension created by two opposite approaches: a desire to see the ECtHR focus on its ‘constitutional task’ along the lines of the US Supreme Court (a refocusing that would provide the Court with discretion to decide between the individual applications submitted to it and limit its tasks to taking ‘leading decisions’ to safeguard minimum common European standards in the area of fundamental rights); and a desire to continue to guarantee the individual’s right to full access to the Court and thus preserve the typical aspects of European human rights protection. Protocol no 14 to the ECHR, which entered into force on 1 June 2010 after its long-delayed ratification by the Russian Federation, is a compromise solution that resulted from the need to solve the problems caused by the flood of individual applications. It attempts to resolve the difficulties by reorganizing the responsibilities of the decision-making bodies within the ECtHR. It may be, depending on the development of the Court’s practice, that the new ground for declaring a case inadmissible—the lack of a ‘significant disadvantage’ for the applicant ‘unless respect for human rights […] requires an examination of the application on the merits’—will enable the Court, de facto, to select the cases it will deal with.
Franz Matscher, ‘Quarante ans d’activités de la Cour européenne des droits de l’homme’ (1997) 270 Recueil des cours 237; Jean-François Flauss, ‘Radioscopie de l’élection de la nouvelle Cour européenne des droits de l’homme’  Revue trimestrielle des droits de l’homme 435; Cour européenne des droits de l’homme/European Court of Human Rights, Aperçus: Quarante années d’activité/Survey: Forty Years of Activity 1959–1998 (1999); Jean-François Flauss, ‘Le renouvellement triennal de la Cour européenne des droits de l’homme’  Revue trimestrielle des droits de l’homme 693; Luzius Wildhaber, ‘Eine verfassungsrechtliche Zukunft für den Europäischen Gerichtshof für Menschenrechte?’  Europäische Grundrechte-Zeitschrift 569; Jean-François Flauss, ‘Faut-il transformer la Cour européenne des droits de l’homme en juridiction constitutionnelle?’  Dalloz 2584; Jean-François Flauss, ‘Brèves observations sur le second renouvellement triennal de la Cour européenne des droits de l’homme’  Revue trimestrielle des droits de l’homme 5; Fred Bruinsma, ‘Judicial Identities in the European Court of Human Rights’ in Aukje van Hoek and others (eds), Multilevel Governance in Enforcement and Adjudication (2006) 203; ‘Les élections de juges à la Cour européenne des droits de l’homme (2005–08)’  Revue trimestrielle des droits de l’homme 713; Philip Leach, Taking a Case to the European Court of Human Rights (3rd edn, 2011); European Court of Human Rights, Annual Reports, <www.echr.coe.int/echr/Homepage_EN>.