ECtHR

The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.

The court was established in 1959 and decided its first case in 1960 in '' Lawless v. Ireland''. 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 46 member states are contracting parties to the convention. The court's primary means of judicial interpretation is the living instrument doctrine, meaning that the Convention is interpreted in light of present-day conditions.

International law scholars consider the ECtHR to be the most effective international human rights court in the world. Nevertheless, the court has faced challenges with verdicts not implemented by the contracting parties.

History and structure

On 10 December 1948, the United Nations adopted the Universal Declaration of Human Rights, which aims to promote the universal recognition of rights set out therein, in order to strengthen the protection of human rights at the international level. While hugely important in setting a global standard for the first time, the declaration was essentially aspirational, and had no judicial enforcement mechanism. In 1949, the twelve member states of the newly created Council of Europe began work on the European Convention on Human Rights, drawing inspiration from the rights already set out in the Declaration, but with the crucial difference that—for the European countries which chose to sign up to it—there would be a judicial mechanism to ensure that they respected the basic rights of their citizens.

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.

As a court of the Council of Europe

The European Court of Human Rights, which enforces the European Convention on Human Rights, is the best known body of the Council of Europe. The Council of Europe (CoE) (, CdE) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it now has 46 member states, covering a population of approximately 700 million, and operates with an annual budget of approximately 500 million euros.

The organisation is distinct from the 27-nation European Union (EU), although it is sometimes confused with it, partly because the EU has adopted the original flag of Europe created by the Council of Europe in 1955, as well as the anthem of Europe. No country has ever joined the EU without first belonging to the Council of Europe. The Council of Europe is an official United Nations observer.

Member states

The jurisdiction of the court has been recognised to date by all 46 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

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 46. 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 European Court of Human Rights is assisted by a registry made up of around 640 agents, of which a little less than half of lawyers divided into 31 sections. The registry carries out preparatory work for the judges, and performs the communication activities of the court, with the applicants, the public and the press. The registrar and the deputy registrar are elected by the Plenary Court.

Plenary court and administration

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 president of the court, the two vice-presidents (also section presidents) and the three other section presidents are elected by the Plenary Court, Section presidents are elected by the Plenary Court, a formation made up of the 46 elected judges of the court. The mandate of the holders is for a renewable period of three years. They are renowned for their morality and competence. They must be independent and there is incompatibility with other functions. They cannot be revoked by their state of origin, but only by decision of their peers, taken by a two-thirds majority and for serious reasons.

Jurisdiction

The court has jurisdiction amongst the member states of the Council of Europe which includes almost every country in Europe except for Belarus, Kazakhstan, Kosovo, Russia and Vatican City. 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

Applications by individuals against contracting states, alleging that the state violated 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 on whether 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 four 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 Judge Rapporteur decides that the case can proceed, the case is then 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.

Interstate cases

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. , five interstate cases have been decided by the court:

* ''Ireland v. United Kingdom'' (no. 5310/71), judgement of 18 January 1978 on inhuman and degrading treatment in Northern Ireland (art. 3)
* ''Denmark v. Turkey'' (no. 34382/97), judgement of 5 April 2000 ratifying a friendly settlement of 450,000 DKK regarding a Danish national detained in Turkey (art. 3)
* '' Cyprus v. Turkey'' (IV) (no. 25781/94), judgements of 10 May 2001 on the treatment of missing persons (art. 2, 3 and 5), the right of return of Greeks who have fled to the south (art. 8, 13 and P1-1), the rights of Greeks still living in the north (art. 3, 8, 9, 10, 13, P1-1, P1-2) and trial by military courts (art. 6). A subsequent judgement of 12 May 2014 awarded €90 million in 'just satisfaction' (art. 41)
* ''Georgia v. Russian Federation (I)'' (no. 13255/07), judgement of 3 July 2014 on the collective expulsion of Georgians from Russia (art. 3, 5, 13, 38, P4-4) and Russia not cooperating with the court (art. 38)
* ''Georgia v. Russian Federation (II)'' (no. 38263/08), judgement of 21 January 2021

Advisory opinion

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 has already considered. Since 2018, member states can similarly request advisory opinions on questions of principle concerning the interpretation or application of the Convention, on the basis of Protocol No. 16. This mechanism aims to foster dialogue between national courts and the ECtHR, thereby preempting Convention violations and minimizing the latter's caseload. Unlike preliminary references under EU law, advisory opinions may only be solicited by the "highest courts and tribunals" of a member state. Although Article 5 of Protocol No. 16 states that "Advisory opinions shall not be binding", they nonetheless enter the ECtHR's case law and may be enforced through later individual complaints if contravened.

''Erga omnes'' effects

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".

Procedure and decisions

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, if any claim is found admissible, its merits are dealt with in the same judgment. In final judgments the court makes a declaration that a contracting state has (or has not) violated the convention in respect of each admissible claim, and in case of violation 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.

Exhaustion of domestic remedies

Article 35 of the European Convention on Human Rights establishes as a precondition on referral to the European Court of Human Rights, the exhaustion of domestic remedies. This condition is the consequence of the subsidiary jurisdiction of the supranational court, which monitors the application of the convention and seeks to eradicate human rights violations. The applicant must establish the inability of the national courts to remedy the breaches, by exercising the appropriate effective and adequate remedies, and in substance alleging a violation of the Convention.

Interim measures

Rule 39 of the Rules of the Court permits the ECtHR to "indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings." Interim measures are binding and afford litigants temporary protections on an expedited basis, although the ECtHR has chosen to only impose them in cases concerning imminent danger to life and limb. Such measures are often deployed to prevent extradition or expulsion to countries with inadequate human rights guarantees, whereas requests to prevent potentially damaging publications or property seizures seldom elicit similar responses.

Just satisfaction

The court may award pecuniary

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