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European court of human rights

Brief description of the European Court of Human Rights

The European Court of Human Rights (ECHR) is an international court, based in the Palace of Human Rights in Strasbourg. It was established in 1959, on the basis of the European Convention on Human Rights (ECHR). Until 1 November 1998, when the 11th Protocol to the Convention (Protocol) entered into force, the European Commission of Human Rights operated alongside the European Court of Human Rights and the Committee of Ministers. Since 1 November 1998, the ECHR has been acting as a permanent court. On other continents, there is no such institution as the ECHR.

Its task is primarily to ensure that the countries respect and guarantee respect for human rights and fundamental freedoms deriving from the ECHR and its Protocols, to their nationals and to everyone within their jurisdiction, irrespective of race, gender, nationality, ethical origin or other circumstances. The ECHR operates under the European Convention on Human Rights and in accordance with the Rules of Court. The costs of the functioning of the ECHR are borne by the Council of Europe. The Council of Europe budget is financed by contributions from the Member States which are determined according to the criteria that take into account the number of inhabitants and the gross domestic product. The budget for 2019, which is earmarked for the ECHR, amounts to almost 70 million euros.

The European Court of Human Rights is composed of a number of judges equal to the number of Council of Europe member states – at present there are 47 members. Each Member State of the Council of Europe proposes three candidates, of whom the Parliamentary Assembly of the Council of Europe elects one by a majority of votes. Since 2010, judges have a nine-year term, without the possibility of a re-run. Prior to 2010, the judges had a six-year term, with the possibility of repeated candidature. The term of office of the judges expires when they reach the age of 70 years. The judge may be previously relieved of his functions only if he so wishes, or if other judges decide by a two-thirds majority that he does not meet the required conditions. The ECHR also stipulates that judges must have a high moral reputation and must either meet the required conditions for pursuing high judicial functions or be generally recognized legal professionals. During the performance of their duties, judges may not receive any duties which are incompatible with their independence, impartiality or any other requirements arising from this function. The primary operating principle of the judges is their independence. Judges deal with cases as individuals and do not represent the state. During the exercise of their functions, they enjoy the privileges and immunities laid down in the Statute of the Council of Europe and in the agreements concluded on the basis of this Statute. The first judge of the ECHR from Slovenia was Peter Jambrek (1993-1998), followed by Boštjan Zupančič (1998-2016), and Marko Bošnjak (from 2016) who is currently sitting as a judge.

ECHR is divided into five divisions or sections. Each department has a president, a vice-president and a group of other judges. The composition of the sections set for a period of three years must be geographically and sexually balanced while taking into account the different legal systems of the Member States. Senates are formed within sections. The senates of three judges are set from among the members of each section, for a period of twelve months, according to a circular system, wherein the president of the section is excluded. The senate of seven judges consists of the chairman of the section to whom the case has been assigned, the judge of the country against which an appeal has been lodged (national judge) and five other judges chosen by the chairman of the section selected on the principle of rotation. The grand senate of seventeen judges consists of the chairman and the vice-chairman of the court, the chairs of the sections and the national judge and other judges who are selected by lot. Judges can not sit in the grand senate if they have previously been sitting in the senate which first dealt with the case. Judges are appointed by the president of the European Court of Human Rights, after consultation with the Office of the European Court of Human Rights (ECHR) (consisting of the chairman, vice-chairmen of the European Court of Human Rights and the chairmen of the sections). Their mandate lasts twelve months. If a national judge does not take part in the case on account of incapacity, withdrawal or exemption, the chairman of the court appoints an ad hoc judge from a list submitted in advance by a member state. A member state includes in the list from three to five persons who qualify for appointment to the post of an ad hoc judge. Their term of office lasts two years and can be re-elected. The list for 2019 is: Saša Sever, Boštjan Zalar, Jure Vidmar and Aleš Galič.

The ECHR operates on the basis of the principle of subsidiarity which provides that the case may be dealt with only after all appropriate and effective domestic remedies have been used. It is responsible for handling individual complaints, inter-state complaints and for issuing advisory opinions. An individual complaint may be filed by any person, group of individuals, a company or a non-governmental organization claiming to be victims of a violation of the rights granted to them by the ECHR and its Protocols by any state party of the Council of Europe. An inter-state complaint may be filed by any Contracting State against another Contracting State for the presumption of a breach of the provisions of the ECHR and its Protocols. Complaints against third countries and individuals are dismissed as inadmissible. The majority of complaints are submitted to the ECHR by individuals, therefore a more detailed description of the individual complaint procedure is provided below.

Filing a complaint and the proceedings in court

An individual complaint must meet the conditions laid down in Article 47 of the Rules of Court. The main elements of the complaint are: the name of the complainant and other personal data of the latter; the name and details of the representative; the name of the member state or states against which the complaint is lodged; an indication of the status and relevant facts: an indication of the alleged violations of the ECHR with appropriate justifications and a statement of admissibility, i.e. the exhaustion of domestic remedies. The European Court of Human Rights only deals with properly filed appeals.

Legal representation or the assistance of a lawyer is not necessary at the start of the procedure. Any person may contact the European Court of Human Rights directly, through to the complaint form and the necessary documents sent by mail. The assistance of a lawyer becomes compulsory when the appeal is upheld by the ECHR and the court informs the defending state about the case and invites it to submit their observations. The complainant may be represented by a person who is a lawyer in one of the contracting states of the ECHR or is empowered by the president of the senate. Before the ECHR, until November 2017, Slovenia was represented by the State Attorney’s Office of the Republic of Slovenia. When the State Attorney’s Office ceased operations on 20 November 2017, all its tasks and responsibilities were taken over by the Attorney General’s Office. Thus, Slovenia is currently represented before the ECHR by the Attorney General’s Office.

An application to the ECHR may be filed in the official language of one of the states, parties to the ECHR. After declaring a complaint as acceptable, the procedure is in principle implemented in one of the official languages of the ECHR (English and French). However, the president of the senate or of the grand senate may authorize the continued use of the language in which the application was made. The procedure before the ECHR is in principle conducted in writing, and in certain cases the ECHR may call a public hearing. The Rules of Court provide that the public shall be excluded in whole or in part from the hearing in certain cases.

Due to the non-compliance with the eligibility criteria, the large majority of applications submitted to the ECHR have been declared inadmissible. The decision of an individual judge that an application is inadmissible is definitive and can not be challenged. If the judge does not decide that the appeal is inadmissible or is not deleted from the list, it shall submit it to a committee or a senate for further consideration. The committee may decide that the appeal is inadmissible or delete it from the list of cases where such a decision can be taken without further review. It may decide that it is admissible and issue a judgment on the case if its fundamental question is already part of the established case-law of the ECHR. The decisions of the committee are final. The senate decides on the admissibility and content of an individual’s complaint if a decision is not taken by the individual judge of the committee and if the committee has not issued a judgment. The senate also decides on the admissibility and content of inter-state complaints. When dealing with an important issue concerning the interpretation of the ECHR or its Protocols, the senate may, if it has not yet delivered a judgment, refer the case to the grand senate. Both sides have to agree with this.

An appeal is permitted only if the state allegedly violates human rights and is not allowed if human rights are violated by private individuals or private legal entities. The ECHR can only deal with matters once the applicant has exhausted all available domestic remedies in accordance with generally recognized rules of international law. The applicant must lodge the application within six months of the date on which the final decision was taken under domestic law. Any complaint that is not in accordance with the provisions of the ECHR or its Protocols is manifestly ill-founded or constitutes an abuse of the individual’s right to appeal is declared inadmissible. A complaint is also inadmissible if the applicant has not suffered a significant disadvantage, unless the respect of human rights as defined in the ECHR and its Protocols requires such a proceeding. In this case, it is not possible to dismiss a case that has not been adequately dealt with by the domestic court.

If the ECHR decides that a request for a proceeding is acceptable, the parties may agree on a friendly settlement which needs to be concluded in accordance with respect for human rights. If a friendly settlement is reached, the ECHR deletes the matter from the list of cases. The decision on a settlement is sent to the Committee of Ministers which oversees the implementation of the provisions specified in the decision. The ECHR encourages the parties to conclude a friendly settlement. If the parties do not reach an agreement, the ECHR continues to deal with the complaint.

Judgment of the court

The judgment must be issued in the official language of the ECHR and must contain the following essential elements: the name of the chairman of the senate and other judges, the name of the registrar or his deputy; date of adoption and declaring a judgment: indication of the parties; the names of the agents, lawyers or advisers of the parties; the course of the procedure; a description of the facts; summary of clients’ depositions; legal reasons for the decision; the operative part of the judgment; a decision on the sanction; a decision on the cost; the number of judges and indications as to which text is credible. Judges who have participated in the case may write an affirmative or adverse separate opinion. The judgment is announced at a public hearing or by a notice. It is transmitted to parties to the procedure, the Committee of Ministers of the Council of Europe and the Secretary General of the Council of Europe.

The judgment of the senate becomes final and legally binding when the parties declare that they will not request a repeated procedure before the grand senate or the senate, or after the expiration of a three-month deadline in which it is necessary to send a request for a repeated procedure before the grand senate. The grand senate’s judgment is final and no appeal is possible against it. If the ECHR does not find violations in the present case, the dispute between the complainant and the state is completed. Otherwise, the judgment needs to be enforced in the domestic legal order. A final judgment is binding on the state. The Committee of Ministers of the Council of Europe is responsible for overseeing its enforcement. The judgments of the ECHR are published in the official reports and on the website of the ECHR.

States have an international legal obligation to implement the judgments of the ECHR in domestic jurisdictions. Since the ECHR does not have executive powers, enforcement is dependent on the individual state. Due to the lack of political will or incapacity of individual countries, a large number of judgments still are not executed.

There are three ways or steps to implement the ECHR judgments. The first is just satisfaction, wherein the Committee of Ministers checks whether the state paid the complainant the amount determined by the ECHR. The state must settle the amount with the corresponding default interest immediately, unconditionally and in a single transfer. The second step is individual implementation which refers to the implementation of the requirements of the ECHR in concrete cases. The forms of individual enforcement include restoring the previous situation, paying monetary compensation, re-deciding and restoring already completed criminal proceedings. The third way of enforcing judgments is general enforcement. States must ensure that violations of the ECHR are abolished and that similar violations are avoided. The ECHR may request from a national court to amend the statutory and constitutional provisions that cause violations of the ECHR, to change established case-law and to improve public access to the judgments of the ECHR. The extreme sanction for non-compliance with the ECHR and non-enforcement of judgments is the exclusion of the state from membership in the Council of Europe.

Pilot judgments

Due to the large number of cases arising from the same problem, the ECHR has developed a new procedure, i.e. the pilot-judgment procedure. When the court receives a large number of applications arising from the same problem, it can select one or more applications and treat them as a matter of priority. When dealing with the application, it will seek to achieve a solution that goes beyond the present case and will cover all similar cases arising from the same problem. The judgment that has arisen will be a pilot judgment. The purpose of the pilot judgment is for the court to find whether there has been a violation of the ECHR in the case in question, in order to identify systemic errors in the country and to give clear instructions to the government on how to correct these errors and in order to form a national legal remedy for dealing with similar cases, or at least in order to settle all such pending cases before the ECHR. The pilot judgment is intended to help national authorities to eliminate systemic problems that the ECHR has highlighted as the cause for repetitive cases. In this, it is assisted by the Committee of Ministers which ensures that the judgments are properly enforced.

The ECHR issued the first pilot judgment on 22 June 2004 in the case of Broniowski v. Poland. Due to the ambiguity and lack of transparency of the procedure, a declaration was made in 2010 with the requirement to develop clear and predictable criteria for the process of issuing pilot judgments. The next year, a new rule, rule 61 of the Rules of Court was adopted, which regulates the procedure in case of systemic human rights violations. The first pilot judgment against Slovenia was issued in 2005, in the Lukenda case. The Court ordered Slovenia to ensure the right to a trial within a reasonable time by means of appropriate legislative measures and implemented practices.

Advisory opinions

In addition to trial, at the request of the Committee of Ministers, the ECHR is also empowered to give advisory opinions on legal issues concerning the interpretation of the European Convention on Human Rights (ECHR) and its Protocols. Questions must not be linked to the content or scope of the rights and freedoms set out in Part I of the ECHR and its Protocols. The same applies to issues that could be addressed by the ECHR or the Committee of Ministers in relation to any proceedings initiated under the ECHR. The decision of the Committee of Ministers to request an advisory opinion must be adopted by a majority of the representatives of the Committee. Advisory opinions must be reasoned. Each judge may add a separate opinion to his advisory opinion if he does not agree, in part or in full, with the unanimous opinion of the judges. Advisory opinions need to be sent to the Committee of Ministers.

Source: Master thesis, “Slovenia before the European Court of Human Rights,” 2015, Maja Gogala

2019-02-18T11:16:31+01:00
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