European Court of Human Rights

A segment of the Berlin Wall in front of the European Court of Human Rights

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 Consultative Assembly of the Council of Europe.[1] 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.

The jurisdiction of the court has been recognized to date by all 47 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.[2][3]

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.[4]

Courtroom of the European Court of Human Rights (detail)

Judges are elected for a non-renewable nine-year term.[4] 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 47. The convention requires that judges are 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.[6] 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 other type of ties with the contracting state in respect of whom 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.[2]

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[7] 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.[2]

The jurisdiction of the court extends to nearly all European states, with the exception of Belarus, the Vatican City, and the predominantly Central Asian Kazakhstan. As such, its jurisdiction extends also to countries outside the European Union. 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.[2] A committee is constituted by three judges, chambers by seven judges, and a Grand Chamber by 17 judges.[2]

Grand Chamber of the European Court of Human Rights

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.[2] 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, both these issues are dealt with in the same judgment. In final judgments the court makes a declaration that a contracting state has violated the convention, and 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.[2]

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.

Criticism against ECtHR includes claims that it interferes too much with the sovereignty of the members states, that it engages in judicial activism, that it is biased against non-Western values, and that it interprets the convention in controversial ways. The court's interpretation of the convention's reach is at times subject to criticism as either too narrow or too wide. For instance, the former judge in respect of Cyprus, Loukis Loucaides, criticised the court for a "reluctance to find violations in sensitive matters affecting the interests of the respondent States".[12] On the other hand, the British Law Lord, Lord Hoffmann argued in 2009 that the court has not taken the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe".[13]

Lord Hoffman considered that the ability of the court to interfere in the detail of domestic law ought to be curtailed.[14] He was in 2010 joined in the criticism by the president of the Belgian Constitutional Court, Marc Bossuyt,[15] who in 2014 also criticized the court for being judicially activist as it expands the guarantees of the treaty to issues that clearly were not included in the treaty nor intended by the framers. Bossuyt especially criticized the court's handling of asylum cases with respect to articles 3 and 6 of the treaty.[16] In the UK, the court was criticized for allegedly being over-intrusive in areas considered to be the domain of domestic courts and parliament; Kenneth Clarke and Dominic Grieve claimed that the court does not give sufficient margin of appreciation to states, a controversy being the court's requirement that the UK liberalize voting rights for prisoners,[17] a decision called "completely unacceptable" by David Cameron.[18] Cameron also claimed that the concept of human rights was being "distorted" and "discredited" by the ECtHR, because reasonable decisions made at a national level were not respected by the court.[19] Hugh Tomlinson claimed that the ECtHR is undermining the media's pursuit of truth through its freedom of expression cases, by unreasonably restricting the media's freedom of speech.[20]

Bertrand Mathieu, a French specialist in constitutional law, argues that the ECtHR rulings are descending into illegitimacy because they unreasonably interfere in the field of politics, which is contrary to the principle that in a democracy it is up to the national legislators to define the general public interest, not to supranational judges.[21] Lord Jonathan Sumption argues that the ECtHR is overstepping its mission upon which it was founded; he claims that originally the court was set up to rule against torture and genocide, but it has consistently expanded its jurisprudence in a manoeuvre of "mission creep", to the point where the judges are effectively creating new laws for citizens, rather than leaving law making to their own parliaments.[22] There has been criticism that the ECtHR lacks accountability; a UK report written by former government adviser, Dr Michael Pinto-Duschinsky staters that the ECtHR is a "virtually unaccountable supra-national bureaucracy".[23] Critics argue that the ECtHR purports itself to be a liberal institution, when instead it is the opposite – an elitist and authoritarian institution, which ignores the views, needs and desires of the general population, instead creating a judicial oligarchy.

Another criticism is that the ECtHR, by refusing to exercise judicial restraint, is endangering the cultural rights of individual countries and their populations, though an interpretation of the notion of human rights which is in accordance to the court's judges' personal views, but which refuses to acknowledge the local conceptions of human rights, specific to the context of each country and its culture.[24] Criticism from Russia, a country held to be in violation of the convention by the court in many decisions, is frequent. The court's judge in respect of Russia, Anatoly Kovler, explaining his frequent dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary".[25]

The chairman of the Russian Constitutional Court Valery Zorkin, pointing to the Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court decisions "touching the national sovereignty, the basic constitutional principles".[26] In 2014, Russia was ordered by the ECHR to pay €1.9 billion in damages to former shareholders of Yukos, which the court ruled was intentionally bankrupted by the government.[27] In 2015, Russia adopted a law allowing it to overrule judgements from the ECtHR,[28] codifying an earlier Russian Constitutional Court decision which ruled that Russia could refuse to recognize an ECtHR decision if it conflicted with the Russian Constitution.[29] Other countries have also moved to restrict the binding nature of the ECtHR judgments, subject to the countries' own constitutional principles. In 2004, the Federal Constitutional Court of Germany ruled that judgments handed down by the ECtHR are not always binding on German courts.[30] In many cases, the authorities in various countries have simply refused to put ECtHR judgments into practice. Nearly 10,000 judgments of the ECtHR have not been put into effect by national governments.[31] In some cases, politicians have been openly defiant. In 2017, Georgia's Minister of Justice Tea Tsulukiani stated that the ECtHR "can't touch a [Georgian court] decision with one swipe".[32]

Critics argue that the principle of "emerging consensus" of the member states on which the ECtHR operates is fundamentally flawed, because such a consensus often relies on trends, and historically in many instances social and political consensus was retrospectively acknowledged to have been wrong. Such an approach is accused of risking to stigmatize and coerce the few dissenting countries, encouraging a pack mentality. Furthermore, critics argue that the ECtHR has claimed that such consensus exists even when objectively it did not, due to the judicial activism of its judges.[33]

There has also been criticism of the court's structure. Loucaides wrote that by introducing in its Rules a Bureau, the court created "a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention".[34] It has been said that in failing to distinctly define how a consensus is reached reduces its legitimacy. Furthermore, as the ECtHR grows, the consensus between the members diminishes.[35] Since the 2000s, there has been increased backlash against what is seen as undue interference by the court in internal issues of member states, a situation which may be the result of the fact that many European countries are now well established democracies with good reputation of human rights: while international human rights institutions may help new emerging democracies make credible commitments to human rights while they are still weak and seek approval, once consolidated democracies already have credibly established domestic protections they have fewer reasons to put up with interventionist supranational institutions.[36]

In 2010, the court received the Freedom medal from the Roosevelt Institute.[37]

• African Court on Human and Peoples' Rights – Regional court established in 2006
• European Court of Human Rights case law
• Human rights in Europe
• Inter-American Court of Human Rights – Regional court established in 1979
• List of LGBT-related cases before international courts and quasi-judicial bodies

Media related to European Court of Human Rights at Wikimedia Commons

• Official website
• Court judgments, decisions and case law website
• Rules of the court (PDF)
• The European Union's accession to the European Convention on Human Rights