STRUCTURE, PROCEDURE AND JURISDICTION OF EUROPEAN COURTS OF HUMAN RIGHTS

Structure, Procedure and Jurisdiction of the European Court Of Human Rights

Naghma Sherin Afridi & Sara Hoor

Advocates.  

 

Table of Contents

1.    EUROPEAN COURT OF HUMAN RIGHTS:

1.1    INTRODUCTION:

1.2 STRUCTURE OF EUROPEAN COURT OF HUMAN RIGHTS:

2. WHO CAN BRING A CASE TO THE COURT?

3.    ADMISSIBILITY:

4.    INADMISSIBILITY:

5.    AMICUS CURIAE BRIEFS:

6.    JUDGEMENTS:

7.    JURISDICTION OF EUROPEAN COURT OF HUMAN RIGHTS:

8.    PROCEDURE OF INDIVIDUAL APPLICATION BEFORE EUROPEAN COURT OF HUMAN RIGHTS UNDER RULES OF COURT, JANUARY 1 2020:

 

 

 

1.    European Court of Human Rights:

 

1.1  INTRODUCTION:

The European Court of Human Rights (ECtHR) is a regional human rights judicial body based in Strasbourg, France, created under the auspices of the Council of Europe. The Court began operating in 1959 and has delivered more than 10,000 judgments regarding alleged violations of the European Convention on Human Rights.

In 1998, the European human rights system was reformed to eliminate the European Commission of Human Rights, which previously decided the admissibility of complaints, oversaw friendly settlements, and referred some cases to the Court – in a manner similar to the current Inter-American System. Now, individual victims may submit their complaints directly to the European Court of Human Rights.

The European Court, or “Strasbourg Court” as it is often called, serves a complementary role to that of the European Committee of Social Rights, which oversees European States’ respect for social and economic rights.

 

1.2 Structure of European Court of Human Rights:

In order to resolve many cases simultaneously, the ECtHR is organized into five sections, or administrative entities, which each have a judicial chamber. Each section has a President, Vice President, and a number of judges. The Court’s 47 judges are selected by the Parliamentary Assembly of the Council of Europe from a list of applicants proposed by the Member States.

Within the Court, the judges work in four different kinds of groups, or “judicial formations.” Applications received by the Court will be allocated to one of these formations:

1. 1. Single Judge: only rules on the admissibility of applications that are clearly inadmissible based on the material submitted by the applicant.
2. 2. Committee:composed of 3 judges, committee rule on the admissibility of cases as well as the merits when the case concerns an issue covered by well-developed case law (the decision must be unanimous).
3. Chamber:composed of 7 judges, chambers primarily rule on admissibility and merits for cases that rise issues that have not been ruled on repeatedly (a decision may be made by a majority). Each chamber includes the Section President and the “national judge” (the judge with the nationality of the State against which the application is lodged).
4. Grand Chamber: composed of 17 judges, the Grand Chamber hears a small, select number of cases that have been either referred to it (on appeal from a Chamber decision) or relinquished by a Chamber, usually when the case involves an important or novel question. Applications never go directly to the Grand Chamber. The Grand Chamber always includes the President and Vice-President of the Court, the five Section presidents, and the national judge.

 

2. Who can bring a case to the Court?

Article 34 ECHR: ‘The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’

The Convention makes a distinction between two types of application: individual applications lodged by any person, group of individuals, company or NGO having a complaint about a violation of their rights, and inter-State applications brought by one State against another. Since the Court was established, almost all applications have been lodged by individuals who have brought their cases directly to the Court alleging one or more violations of the Convention.

 

3.    Admissibility:

 

Exhaustion of domestic remedies: Article 35 ECHR. ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.’

Time period: Article 35 ECHR. The Court may only deal with the matter if it is submitted to the Court within a period of six months after exhaustion of domestic remedies.

Duplication of procedures: Article 35 ECHR. The Court shall not deal with any application that ‘is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.’

 

4.    Inadmissibility:

 

Article 35 ECHR. The Court shall declare inadmissible any application submitted under Article 34 that is ‘anonymous’ or ‘which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.’

5.    Amicus curiae briefs:

 

Article 36 ECHR:

‘1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.

2. The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.’

6.    Judgements:

Article 41 ECHR: ‘If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.’

• Binding force: Article 46(1) ECHR: ‘The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties.’
• Execution of judgements: Article 46(2) ECHR: ‘The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.’ Additionally, according to Articles 3 and 8 of the Statute of the Council of Europe, the Committee of Ministers has the power of expulsion of recalcitrant states.

7.    Jurisdiction of European Court of Human Rights:

The Court has jurisdiction to decide complaints (“applications”) submitted by individuals and States concerning violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly referred to as the “European Convention on Human Rights“), which principally concerns civil and political rights.

 

8.    Procedure of Individual Application before European Court of Human Rights under Rules of Court, January 1 2020:

 

Rule 522-Assignment of applications to the Sections

1. Any application made under Article 34 of the Convention shall be assigned to a Section by the President of the Court, who in so doing shall endeavour to ensure a fair distribution of cases between the Sections.
2. The Chamber of seven judges provided for in Article 26 § 1 of the Convention shall be constituted by the President of the Section concerned in accordance with Rule 26 § 1.
3. Pending the constitution of a Chamber in accordance with paragraph 2 of this Rule, the President of the Section shall exercise any powers conferred on the President of the Chamber by these Rules.

Rule 52A – Procedure before a single judge

1. In accordance with Article 27 of the Convention, a single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination. The decision shall be final. It shall contain a summary reasoning. It shall be communicated to the applicant.
2. If the single judge does not take a decision of the kind provided for in the first paragraph of the present Rule, that judge shall forward the application to a Committee or to a Chamber for further examination.

Rule 53 – Procedure before a Committee

1. In accordance with Article 28 § 1 (a) of the Convention, the Committee may, by a unanimous vote and at any stage of the proceedings, declare an application inadmissible or strike it out of the Court’s list of cases where such a decision can be taken without further examination.
2. If the Committee is satisfied, in the light of the parties’ observations received pursuant to Rule 54 § 2 (b), that the case falls to be examined in accordance with the procedure under Article 28 § 1 (b) of the Convention, it shall, by a unanimous vote, adopt a judgment including its decision on admissibility and, as appropriate, on just satisfaction.
3. If the judge elected in respect of the Contracting Party concerned is not a member of the Committee, the Committee may at any stage of the proceedings before it, by a unanimous vote, invite that judge to take the place of one of its members, having regard to all relevant factors, including whether that Party has contested the application of the procedure under Article 28 § 1 (b) of the Convention.
4. Decisions and judgments under Article 28 § 1 of the Convention shall be final. They shall be reasoned. Decisions may contain a summary reasoning when they have been adopted following referral by a single judge pursuant to Rule 52A § 2.
5. The decision of the Committee shall be communicated by the Registrar to the applicant as well as to the Contracting Party or Parties concerned where these have previously been involved in the application in accordance with the present Rules.
6. If no decision or judgment is adopted by the Committee, the application shall be forwarded to the Chamber constituted under Rule 52 § 2 to examine the case.
7. The provisions of Rule 42 § 1 and Rules 79 to 81 shall apply, mutatis mutandis, to proceedings before a Committee.

Rule 54 – Procedure before a Chamber

1. The Chamber may at once declare the application inadmissible or strike it out of the Court’s list of cases. The decision of the Chamber may relate to all or part of the application.
2. Alternatively, the Chamber or the President of the Section may decide to

(a) request the parties to submit any factual information, documents or other material considered by the Chamber or its President to be relevant;

(b) give notice of the application or part of the application to the respondent Contracting Party and invite that Party to submit written observations thereon and, upon receipt thereof, invite the applicant to submit observations in reply;

(c) Invite the parties to submit further observations in writing.

3. In the exercise of the competences under paragraph 2 (b) of this Rule, the President of the Section, acting as a single judge, may at once declare part of the application inadmissible or strike part of the application out of the Court’s list of cases. The decision shall be final. It shall be summarily reasoned. It shall be communicated to the applicant as well as to the Contracting Party or Parties concerned by a letter containing that reasoning.
4. Paragraph 2 of this Rule shall also apply to Vice-Presidents of Sections appointed as duty judges in accordance with Rule 39 § 4 to decide on requests for interim measures. Any decision to declare inadmissible the application shall be summarily reasoned. It shall be communicated to the applicant by a letter containing that reasoning.
5. Before taking a decision on admissibility, the Chamber may decide, either at the request of a party or of its own motion, to hold a hearing if it considers that the discharge of its functions under the Convention so requires. In that event, unless the Chamber shall exceptionally decide otherwise, the parties shall also be invited to address the issues arising in relation to the merits of the application.