Chapter 7: European Human Rights Protection System: The Council of Europe and The European Court of Human Rights

The Council of Europe

The human rights protection mechanisms generated in Europe since the end of the World War II are respected, appreciated and renowned worldwide. The success of the European Union (EU) to unite many States under its supranational authority plays a crucial role in this picture. The EU does not have a specific human rights mechanism though. But The Council of Europe (CoE) has a muchpraised mechanism that obliges States to secure fundamental rights of not only their own citizens but also of everyone within their jurisdiction. All of its members are parties the ECHR and most of its Protocols, which are put into force to protect human rights, democracy and the rule of law.

The mechanism that effectively serves also to the EU has undergone dramatic legal and political changes in recent years though. The Court is of the view that introducing filtering mechanisms was unavoidable, as it receives over 50.000 new applications every year and therefore “has been a victim of its own success”.

Brief History

The CoE, which introduces itself as “the continent’s leading human rights organisation” was founded on 5 May 1949 by the Treaty of London that officially “constitute the Statute of the Council of Europe”. Based in Strasbourg, it is one of the leading intergovernmental bodies founded in Europe in the wake of the World War II. The preamble of its statute announces that the Parties are “convinced that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation”. Accordingly, their “devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law” has made “a closer unity between all likeminded countries of Europe” essential. In accordance with the aim “to achieve a greater unity between its Members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress” (Article 1), the CoE has produced a number of conventions, charters, agreements and protocols that are judicially overseen by the ECrtHR

Organs

As all international organisations, the CoE has its own authorities and organs. The principal ones that play a role in the human rights protection mechanism are the Secretary-General, the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, the Venice Commission and, above all, the European Court of Human RightsECrtHR.

The Secretary-General, who is elected for a term of five years by the Parliamentary Assembly, leads and represents the Council.

The main decision and policy making body of the Council is the Committee of Ministers.

This “governmental” body sustains a close dialogue with the Parliamentary Assembly (PACE), which is generally seen as the “public face” and even the “motor” of the Council.

The Congress of Local and Regional Authorities of Europe (also known as the Congress of the Council of Europe) is created in 1994 as a consultative body in line with increasing importance of regional and local participation and governance. All local and regional authorities in the member states are represented in the Congress.

The European Commission for Democracy through Law, generally known as the Venice Commission as it meets in Venice, is an advisory body of the CoE on constitutional matters.

European Court of Human Rights

All aside, the ECrtHR is undoubtedly the main organ of the CoE in terms of human rights protection. Although originally set up in 1959 on the basis of Article 19 of the European Convention on Human Rights (ECHR) signed in 1950, the Court has started operating as a fulltime permanent court based in Strasbourg in 1998 to which individuals can apply directly and seek the legal remedies provided by the Council.

The Composition of the ECrtHR

The Court is made up of full-time professional judges resident in Strasbourg. They are elected for a nonrenewable term of nine years by the PACE with respect to each member “by majority of votes cast from a list of three candidates nominated by” it (Articles 22 and 23, ECHR). Member states do not necessarily nominate their citizens. A nominee is not required to be a citizen of a member state either. This is partly to give particularly the members with small population the flexibility to nominate outstanding judges from across the globe. The founders might have also wanted to show that nation-State and/or nationalism is not their number one priority.

The plenary court has administrative and judicial bodies. The administrative ones are called Section. There are five sections, each of which has its own president, vicepresident and a number of judges selected in a way that gender-balance is ensured.

Judicial formations which are generated from within these sections and which fulfill the juridical works and the proceedings are called Chambers.

The Jurisdiction of the ECrtHR

The Court has jurisdiction over three types of applications as of 2019. Applications by individuals against the States Parties, inter-state cases, and advisory opinions in accordance with Protocols 2 and 16.

Individual Application: Any natural or legal person, including group of individuals, companies and NGOs, may lodge a case against any State Party alleging that the latter violated one or more of their rights and guarantees set out in the Convention or its Protocols.

So, being a national of one of the States Parties is neither necessary nor required. As will be elaborated on below, the only condition is allegedly being exposed to a violation of a State Party “within its jurisdiction”. The applicant must also demonstrate that s/he has directly and personally been the victim of the alleged violation(s). A general complaint about a law or a measure cannot be made.

Once registered, the application becomes subject to the admissibility decision. In other words, the merits of a case is not heard and judged straight after the application. For being declared admissible, the application must meet certain criteria.

The admissibility decision used to be given unanimously by a three-judge committee up until 2010. This effectively meant that even in cases where only one of the three judges had seen some merits in it unlike the other two, the application was declared admissible. Thus the Court was ensuring everyone that even a slight probability of abuse was taken seriously and scrutinised. However, Protocol 14 that entered into force in 2010 in the name of reducing the workload of the Court has made a dramatic, and in fact controversial, change in the admissibility process. The applications are now being examined by a single-judge formation.

Once an application is declared admissible, the proceedings does not start straight-forwardly. The Court first “places itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols” (Article 39, ECHR). If the applicant and the respondent State reach at an agreement, the Court strikes the case out of its list. It is obvious that this procedure is mainly meant to reduce the workload of the Court.

The primary object of the proceedings is to determine whether or not there has been a violation of the Convention and its Protocols. Before the proceedings start, all details of the application are conveyed to the government of the respondent State for its assessment.

Hearings are held “in public unless the Court in exceptional circumstances decides otherwise” and “documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise” (Article 40, ECHR). In practice, most of the hearings are held in private.

Judgments of Chambers shall become final unless “within a period of three months from the date of the judgment of the Chamber” any of the parties “requests that the case be referred to the Grand Chamber”

The final judgment of the Court is binding and published. The respondent State undertakes to abide by it.

However, it is important to note that the ECrtHR is not a court of appeal. Its verdict cannot annul or alter the judgments of the national courts or the domestic laws and administrative practices. This effectively means that the State in question is not legally required to conduct a retrial, unless the State itself adopted such a legal measure.

Inter-State Applications: All States Parties can lodge an application in the Court against each other for alleged breaches of the Convention and its Protocols (Article 33, ECHR). This is a natural result of the “common values” understanding on which the whole CoE system is based. Accordingly, protection of human rights cannot merely be seen as a unilateral obligation of States owed to human beings. It is rather a common commitment and responsibility of all State Parties to collectively uphold their agreed common values within the common legal space (espace juridique) they created collectively.

Any State Party that decides to bring such a case is required to file an application that clearly presents its arguments based on factual findings. The alleged violation(s) can be about any obligation and/or duty envisaged in the Convention and its Protocols. The Court then immediately informs the alleged State Party and assigns the application to one of the Sections.

Unsurprisingly, this procedure has been very rarely utilised in practice. While the parties reached at a friendly settlement in a couple of cases, the Court has awarded compensation (just satisfaction) in some others.

Advisory Opinions: The Court has in fact been assigned to give advisory opinions by Protocol 2 that entered into force in 1970 and amended the ECHR. Accordingly, upon the request of the majority of the representatives entitled to sit on the Committee of Ministers, the Court may “give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto” (Article 47/1, ECHR). Mostly to protect the juridical impartiality and dignity of the Court, such requests “shall not deal with any question relating to the content or scope of the rights or freedoms” protected by the Convention and its Protocols or “with any other question” that arise from any such proceedings (Article 47/2, ECHR). Indeed, this procedure has been used on a couple of issues that concern the scope of the assigned duties and powers of the Committee such as those that concern the election of the judges.

Protocol 16, which entered into force in 2018 in respect of the States which have signed and ratified it, has extended the jurisdiction of the ECrtHR. It specifies that the Court may give advisory opinions also in response to requests from the specified highest courts or tribunals of the States Parties.

It goes without saying that advisory opinions are nonbinding. The main goal of the new procedure is to give the domestic courts guidance on interpretation of the Convention and its Protocols that relate to a case before them.