European Court for Human Rights: Overview

The European Convention on Human Rights (ECHR) provides for a collective redress that allows individuals to launch an administrative appeal before the European Court for Human Rights (ECtHR) in Strasbourg in cases of a violation of the ECHR and/or its additional protocols by a member state of the Convention.

Website of the European Court for Human Rights (ECtHR)

Until the end of October 1998, appeals concerning a violation of the ECHR were mainly examined by the European Commission of Human Rights, which then reported to the Committee of Ministers. It was the countries conscious decision to also accept the authority of jurisdiction of the European Court for Human Rights. Since the entry into force of Protocol No.11 to the Convention for the Protection of Human Rights and Fundamental Freedoms on the restructuring of the control mechanism established by the Convention, the European Court for Human Rights is the one and only court to decide on Human Rights issues. The Committee of Ministers of the Council of Europe is still responsible for the implementation of its verdicts.

Composition 

The ECHR is composed of full-time judges and divided into four sections. Dependent on the significance of the case, the Grand Chamber (consisting of 17 judges), the Chamber (consisting of 7 judges) or the Commission (consisting of 3 judges) will decide. The Additional Protocol No. 14 also instituted single judge formations which can definitely disallow individual complaints that are self-evidently invalid, and shall in this way help to take the pressure off the Court. At present, the ECtHR consists of 47 judges, equivalent to the number of signatory parties. They are elected by the Parliamentary Assembly of the Council of Europe from a list of three candidates presented by the respective country. But, the elected judges are independent and do not represent a country. In October 2011, Helen Keller took over the place of Giorgio Malinverni who retired for age reasons. The Principality of Liechtenstein is also represented by a Swiss, Mark Villiger. The Additional Protocol No. 14 extended the period of office from six to nine years, as a compensatory measure, a re-election is not possible.

Individual complaints before the ECtHR

The admissibility of individual complaints to the European Court for Human Rights is linked to a series of criteria defined in articles 34 and 35 of the European Convention on Human Rights. Many complaints are rejected because they are inaccurately worded and therefore it cannot be clearly followed whether all the conditions for admission are fulfilled.

  • Subsidiarity: National legal action has to be exploited fully first. In Switzerland, this is only the case after a verdict by the Federal Supreme Court.
  • Deadline: The complaint has to be lodged within 6 months of the judgement of the court of final appeal of the respective country. Delayed complaints will be dismissed.
  • Form and content of the complaint: The complaint has to be filed in written and not anonymously, fax and email are also allowed. The facts and circumstances are to be presented in concise form, together with an explanation as to how and what extent ECHR rights were infringed. The complaint can be written in any official language of the Council of Europe. At a later stage, the proceedings will be held in French or English and there is an obligation to be represented in court.
  • Legal consequences: If the ECtHR finds an infringement, it accepts the complaint and leaves it to the country to decide on how it is going to make up for the infringement (restitutio in integrum). Should this not be possible, the ECtHR can also decide on pecuniary reparation which, in general, usually falls substantially short of the expectations of the plaintiff. In Switzerland, a verdict by the Federal Supreme Court can be revised under the provisions of Art. 122 BGG (Federal Law on the Federal Supreme Court)

The ECtHR goes to great lengths to keep people from filing a complaint:

Inter-State cases before the ECtHR

According to article 33, the ECHR system also gives states the opportunity to bring to court another state. Compared to the individual complaints, it is unnecessary for the accusing state to make valid its own rights or those of its own national. Inter-State cases are only lodged very seldom, their political significance therefore is all the bigger.

Method of operation

The Court can determine its way of operation by itself, giving itself the «Rules of Court». The ECHR only provides the framework by defining the respective competencies of the different organisations (see above under «Composition»). Traditionally, the admissibility and the topical merit of a complaint are being decided on separately. Whereas a decision on both points used to be exception, since the ratification of the 14th Additional Protocol it is the rule, at least in mainstream legislation. Today, a panel of 3 judges can decide conclusively should their decision be unanimous. Should there be a disagreement, the case is passed on to the Small Chamber whose decision can then be appealed before the Great Chamber within a 3 months’ period of time. The Small Chamber can forward the case to the Great Chamber directly for decision, if the topic is of particular difficulty or a chance in jurisdiction is near. But the parties to the dispute can avoid this by first requesting a decision by the Small Chamber in order to being able to launch an appeal.

Implementation of verdicts by the Committee of Ministers

The ECtHR verdicts are legally binding, which means that they have to be respected and implemented by the states. But the ECtHR does not have a «European police force» at its disposal. The Committee of Ministers of the Council of Europe – a political instance – is responsible for the supervision of the implementation of the verdicts. During its quarterly meetings it discusses on the progress. The countries concerned have to give account on the implementation of the verdicts in so-called «action reports». If the Committee of Ministers is content with the progress, it issues a conclusive and final resolution. Should it not be pleased by the governments’ status, the Committee requests the state to live up to its requirements. In the 14th Additional Protocol, this relatively weak lever was enhanced in case of culpable negligence. But most states respect the verdicts – which are only very rarely openly criticised, mostly for internal reasons. Structural problems, too, can complicate the implementation of a verdict.

The work of the ECtHR has essentially contributed to the basic European democratic values, in which human rights and fundamental freedoms enjoy an important significance. It also resulted in a unification of legal standards for citizens. Many basic verdicts rendered against states have led to changes in legislation and in the handling of human rights by the member states.

Update: 30.11.2011

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