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European Court of Human Rights

European Court of Human Rights Created in 1959, the Court is presided over by a judge from each of the member states that are signatories of the European Convention on Human Rights. It decides whether or not an individual's rights have been disregarded by a member state in cases when the two parties have already failed to reach a settlement through the European Commission of Human Rights.

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European Court of Human Rights

European Court of Human Rights: see Council of Europe.

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European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights is an institution of the Council of Europe (CoE), based in Strasbourg, France. The Court is the supervisory institution established by the 1950 European Convention on Human Rights (ECHR). Initially, the Court, together with the European Commission of Human Rights, formed part of a two-tier institutional system. These two part-time institutions were replaced by a single-tier, full-time European Court of Human Rights in 1998. The Court is composed of one judge elected in right of each of the CoE's forty-six member states.

Reflecting the reservations of national governments, the Convention originally provided for only a comparatively limited compulsory system of supervision. States, in ratifying the ECHR, had only to accept a right of interstate complaint. Under the terms of this mechanism, any state party to the Convention could bring a case before the European Commission of Human Rights against any other state party. The Commission, after taking evidence, would then transmit its opinion to the CoE's Committee of Ministers for a decision (the finding of a violation requiring a two-thirds majority among the members of the Committee).

The Convention, however, also provided for the possibility of states accepting a more robust system of control. Article 25 of the ECHR set out an optional provision, whereby states could accept the right of individual petition . Following a state's acceptance of this mechanism, any person, non-governmental organization (NGO), or group of individuals who deemed themselves to have been the victim(s) of a violation of the rights guaranteed by the Convention could lodge a petition with the Commission. The admissibility of such petitions was made subject to a number of conditions, including the exhaustion of domestic remedies. Article 46 of the ECHR provided for the optional acceptance by state parties of the jurisdiction of the European Court of Human Rights. This provision allowed, after the delivery of the Commission's opinion, for the referral of a case to the Court rather than to the Committee of Ministers. The referral could be made either by the Commission itself or a state party concerned. The initial acceptance of the optional provisions was something of a patchwork, with member states variously accepting one or both of the articles. Nevertheless, in the long term, there was a clear trend toward generalized acceptance of the full system of control. From 1989 on the ratification of the ECHR, together with the immediate acceptance of both Articles 25 and 46, became a condition of admission to the CoE for new member states.

Member States of the Council of Europe
source: Adapted from The Council of Europe's Member States. Council of Europe. <http://www.coe.int/DefaultEN.asp>.
Date of membership in parentheses.
Albania (July 13, 1995)
Andorra (November 10, 1994)
Armenia (January 25, 2001)
Austria (April 16, 1956)
Azerbaijan (January 25, 2001)
Belgium (May 5, 1949)
Bosnia and Herzegovina (April 24, 2002)
Bulgaria (July 5,1992)
Croatia (November 6, 1996)
Cyprus (May 24, 1961)
Czech Republic (June 30, 1993)
Denmark (May 5, 1949)
Estonia (May 14, 1993)
Finland (May 5, 1989)
France (May 5, 1949)
Georgia (April 27, 1999)
Germany (July 13, 1950)
Greece (August 9, 1949)
Hungary (November 6, 1990)
Iceland (March 7, 1950)
Ireland (May 5, 1949)
Italy (May 5, 1949)
Latvia (February 10, 1995)
Liechtenstein (November 23, 1978)
Lithuania (May 14, 1993)
Luxembourg (May 5, 1949)
Malta (April 29, 1965)
Moldova (July 13, 1995)
Monaco (October 5, 2004)
Netherlands (May 5, 1949)
Norway (May 5, 1949)
Poland (November 26, 1991)
Portugal (September 22, 1976)
Romania (October 7, 1993)
Russian Federation (February 28, 1996)
San Marino (November 16, 1988)
Serbia and Montenegro (April 3, 2003)
Slovakia (June 30, 1993)
Slovenia (May 14, 1993)
Spain (November 24, 1977)
Sweden (May 5, 1949)
Switzerland (May 6, 1963)
Former Yugoslav Republic of Macedonia (November 9, 1995)
Turkey (August 9, 1949)
Ukraine (November 9, 1995)
United Kingdom (May 5, 1949)

Nevertheless, the very success of the ECHR system in establishing itself engendered new problems. Already in the early 1980s, the growing caseload of the Commission and (to a lesser extent) the Court led to extensive discussions concerning the possible reform of the system. The reform discussions centered around two competing institutional projects. On the one hand, the initial phase of discussions was dominated by a Swiss-inspired proposal for the merger of the two supervisory institutions, creating a single-tier, full-time Court. On the other hand, the Dutch and Swedish governments advanced a counterproposal that sought to preserve the existing two-tier system, while upgrading the status of the Commission so as to become a fully judicial institution in its own right (empowered to render final decisions, rather than only advisory opinions). After a period of increasingly polarized negotiations, a compromise was finally reached between proponents of the two plans at a meeting in Stockholm in May 1993. The Stockholm Compromise, which formed the basis for the Eleventh Protocol to the ECHR, mandated the creation of a single-tier Court structure, but provided for the rehearing of cases within that unitary structure.

Protocol No. 11 to the ECHR was opened for signature in 1994 and entered into force in 1998. While leaving the rights guaranteed by the ECHR untouched, it effected a major reform of the Convention's structures. A single, full-time Court was established, while the right of individual petition was made an integral part of the Convention. Under the new procedures, individual petitions are first reviewed by a committee of three judges, who may unanimously declare an application inadmissible. Cases passing this initial hurdle will then normally be heard by a seven-member chamber of the Court. However, a provision also exists for a seventeen-member grand chamber of the Court to hear cases of exceptional importance—either when a chamber has relinquished jurisdiction or, on a discretionary basis, after a chamber judgment. The Committee of Ministers no longer plays any role in the decision-making process, although it remains responsible for supervising the execution of judgments. Relative to the previous system, Protocol No. 11 may thus be seen to have created a more streamlined process, as well as fully securing the judicial character of the system. The rather awkward provisions that govern the rehearing of cases within a single court (where the national judge and the chamber president will sit at both stages of the case) have, however, been the subject of strong criticism.

Although the new system has resulted in a substantial increase in the number of cases dealt with every year, it has not been able to keep pace with the demands placed on the Convention system. The steady increase in the number of petitions from longstanding member states, coupled with the expanding volume of cases from post-Communist states that have joined the CoE since the end of the Cold War, has produced an almost exponential growth in the Court's docket . Almost 41,000 applications were lodged with the Court in 2004. By way


of comparison, the Strasbourg institutions, in the entire period from 1955 to 1988, had addressed approximately 44,000 such petitions.

Faced with this increasingly unmanageable volume of business, discussions concerning further reform of the Court started very shortly after the entry into force of Protocol No. 11. Following a series of evaluation reports and expert recommendations, Protocol No. 14 to the ECHR was opened for signature in May 2004. If the protocol is ratified by all state parties, admissibility decisions may be made by a single judge, while repetitive cases (those that concern recurring patterns of violations, where the points of law are already clearly established) may be dealt with by a three-member committee of judges. New possibilities also will be created for the Committee of Ministers to bring matters directly before the Court, in the interest of a better enforcement of decisions. Most controversially, Protocol No. 14 would additionally establish a new admissibility criterion, whereby the Court may choose not to hear a case when it is deemed that the petitioner has not suffered a "significant disadvantage" that no general issue under the ECHR is raised by the case; and that the case has received due consideration by a domestic tribunal.

The new admissibility criterion potentially introduced by Protocol No. 14 acutely raised the more general question of the future direction of the Strasbourg Court. Prominent voices within the Court have argued that it must strategically limit its docket, redefining itself as a constitutional court concerned primarily with establishing general principles of human rights law. Equally prominent voices have, however, conversely argued that the very essence of the system lies in its ability to provide effective redress in all meritorious cases. The Court must thus confront the dilemma of balancing the expectations of individual petitioners against the broader demands of its institutional role. The future of the European Court of Human Rights will largely be shaped by where, and how successfully, this balance is struck.

See also: European Convention on Human Rights and Fundamental Freedoms; Human Rights.

bibliography

Blackburn, Robert, and Jörg Polakiewicz, eds. Fundamental Rights in Europe: The ECHR and Its Member States, 1950–2000. Oxford, UK: Oxford University Press, 2001.

The Council of Europe's Member States. Council of Europe. <http://www.coe.int/DefaultEN.asp>.

European Court of Human Rights. <http://www.echr.coe.int/>.

Harris, David J., Michael O' Boyle, and Colin Warbrick. Law of the European Convention on Human Rights. London: Butterworths, 1995.

Janis, Mark, Richard Kay, and Anthony Bradley. European Human Rights Law: Text and Materials, 2nd ed. Oxford, UK: Oxford University Press, 2000.

Merrills, John G., and Arthur H. Robertson. Human Rights in Europe: A Study of the European Convention on Human Rights. Manchester, UK: Manchester University Press, 2001.

Mowbray, Alastair. Cases and Materials on the European Convention on Human Rights. London: Butterworths, 2001.

Ovey, Claire, and Robin C. A. White. The European Convention on Human Rights, 3rd ed. Oxford, UK: Oxford University Press, 2002.

Robert Harmsen

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