Donna Gomien
Associate Professor, Norwegian Institute
of Human Rights
University of Oslo
"Short guide to the European Convention on Human Rights" pp. 139 - 154 Council of Europe Publishing 1998
The organs of the European Convention on Human Rights
A. The European Court of Human Rights
Protocol No. 11 to the European Convention on Human Rights enters into force on 1 November 1998. As this short guide has been written prior to that date and prior to the issuance of the Rules of Procedure of the Court, the following sections provide only a factual overview of the institutional and procedural mechanisms set forth in the amended Convention.
1. Composition of the Court
Article 20 of the Convention fixes the number of judges on the Court by reference to the number of High Contracting Parties to the Convention. The judges, who act in their individual capacities, must fulfil the following criteria:
[They] shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.
During their term of office, judges are prohibited from engaging in any activity which is "incompatible with their independence, impartiality or the demands of a full-time office". The Court itself decides all questions arising from the application of this principle.
The Parliamentary Assembly of the Council of Europe elects the judges of the European Court of Human Rights to six-year terms. Judges may be re-elected.
A judge may be dismissed from office where two-thirds of the other judges decide that he or she has ceased to fulfil the required conditions (Article 24).
2. The structure and jurisdiction of the Court
Article 27 of the Convention calls for the establishment of three different types of bodies within the Court structure: committees, Chambers, and a Grand Chamber.
Committees, consisting of three members each, may declare inadmissible or strike out of the list of cases an individual application, where such a decision can be taken without further consideration. Any such decision is final and cannot be appealed by the individual involved.
Most of the work of the Court is conducted at the second level in the organisational structure, by a Chamber consisting of seven judges, including an ex officio member, the judge of the State Party concerned or a person appointed to sit in that capacity in the absence of such a judge.
In addition to setting up the committees mentioned above, the Chambers decide on the admissibility and merits of both inter-State applications and those individual applications not declared inadmissible by the committees. Normally, a Chamber will decide on the admissibility of an application separately from deciding on the merits.
The third level at which the Court operates is at the level of the Grand Chamber, which consists of seventeen judges. In addition to providing for an ex officio member on the same conditions as those applying to a Chamber, Article 27, in paragraph 3, also requires the inclusion of the President of the Court, the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court.
The Grand Chamber exercises jurisdiction only over matters referred to it and only in three situations. First, under Article 30 a Chamber may relinquish its jurisdiction in the following circumstances:
Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court ... unless one of the parties to the case objects.
The first of these criteria also applies to the second type of referral, governed by Article 43 of the Convention. Under this article any party to a case regarding which a Chamber has issued a judgment has three months to request that the case be referred to the Grand Chamber. A panel of five judges will then decide whether to refer the case to the Grand Chamber based on whether it raises a "serious question affecting the interpretation or application of the Convention ... or if the case raises "a serious issue of general importance". If the panel rejects the request, the judgment of the Chamber stands as final.
Article 47 of the Convention covers the third type of referral to the Grand Chamber, requests for advisory opinions. A request for an advisory opinion can only be made by the Committee of Ministers of the Council of Europe and only in very special circumstances and with regard to "legal questions concerning the interpretation of the Convention and the protocols thereto" thus excluding issues relating to the content or scope of the rights defined in Section I of the Convention.
3. Procedures under the European Convention on Human Rights
The effectiveness of international law in general depends upon the willingness of States to surrender some of their sovereign powers to wider international control. In the context of treaty law, sovereign States will often ratify a treaty only on the understanding that all States parties to the same treaty have surrendered equivalent sovereign powers. The underlying principle of such treaties, therefore, is reciprocity, the understanding that each party will act in a certain way because the other will.
International human rights law, as a subdivision of international law, is based in part on the reciprocity principle, for example, in the area of humanitarian law and the law of armed conflict. At the same time, international human rights law has introduced two important new innovations to international law. First, it is largely based on a system of multilateral conventions that establish objective standards for State conduct, rather than reciprocal rights and obligations. And second, these conventions place duties on the States in relation to individuals within their jurisdiction rather than to the other States parties.
As one of the earliest entries in the field of international human rights law, the European Convention on Human Rights is based on the objective standards principle and on the rights of individuals to protection against abuses of State power. The entire legal regime of the Convention is based on State acceptance of the obligation to secure human rights to all. There are, however, means by which the State may limit the effectiveness of the system, such as the lodging of reservations or derogations. All of these means go directly to the substantive rights guaranteed by the Convention. Other means, however, such as the acceptance of the right of individual petition to the European Court of Human Rights and the acceptance of the compulsory jurisdiction of the Court, go to the very availability of review of alleged violations of rights, and hence have a much stronger influence on the effectiveness of the Convention system as a whole. These means are no longer available to States Parties under the new system, since Protocol No. 11 made automatic the acceptance of both the right of individual petition and the compulsory jurisdiction of the Court (see Articles 34 and 32 respectively).
i. The right of individual petition: Article 34
The right of individual petition, which represents one of the most effective means of protecting human rights, is the essential element of the supervisory system established by the European Convention. Article 34 allows the Commission to receive petitions 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 this Convention". Under Protocol No. 11 all High Contracting Parties to the Convention must accept the right of individual petition established under Article 34. Under the old system most States exercised their option to recognise the right of individual petition for specific periods of time only, although these States regularly renewed their declarations to that effect. Some of the States that recognised the right of individual petition under the old system did so only recently. Therefore, few individual petitions relating to those countries have yet worked their way through the Convention system.
The Court is competent to examine individual petitions under Article 34 that relate to any matters arising since the State ratified the Convention itself, subject to the requirements of Article 35. Under the old system a few States lodged declarations to the contrary, limiting their acceptance of the Commission's competence to matters arising or decisions taken after the date the declaration took effect. The Commission has found such declarations to be compatible with the article.
Under Article 34, when a State recognises the right of individual petition, it undertakes not to hinder in any way the effective exercise of this right". This provision relates closely to the rights of access to court and to legal counsel under Article 6 (see pp. 32 ff.) and the right to respect for correspondence under Article 8 (see pp. 61 ff.).
In recent years, other questions have arisen as to the scope of the State's obligation not to hinder in any way the effective exercise" of the right to individual petition under Article 34. In 1987, Turkey declared its recognition of the competence of the Commission to examine individual applications in accordance with Article 34 (then Article 25). At the same time, however, it subjected its acceptance of the Commission's competence to a number of limitations. For example, the Turkish Government stated:
(iii) the competence attributed to the Commission under this declaration shall not comprise matters regarding the legal status of military personnel and in particular, the system of discipline in the armed forces;
(iv) for the purpose of the competence attributed to the Commission under this declaration, the notion of "a democratic society" in paragraphs 2 of Articles 8, 9, 10, and 11 of the Convention must be understood in conformity with the principles laid down in the Turkish Constitution and in particular its Preamble and its Article 13;
(v) for the purpose of the competence attributed to the Commission under the present declaration, Articles 33, 52 and 135 of the Constitution must be understood as being in conformity with Article 10 and 11 of the Convention. (Annex to letter addressed to the Secretary General dated 29 January 1987)
Turkey is the only High Contracting Party to the European Convention ever to attempt to attach conditions to a declaration accepting the right of individual petition. On the Secretary General's notifying the other High Contracting Parties of Turkey's declaration, several expressed their dissatisfaction with these conditions and reserved the right to contest them in the future (Sweden, Luxembourg, Denmark and Norway). Greece stated that it considered the Turkish declaration impermissible. The main issues raised in the correspondence on the matter revolved around the nature of a reservation under Article 64 of the Convention and in international law in general (See discussion on reservations and interpretative declarations above). The Court referred to these objections when holding that it considered Turkey's acceptance of the right to individual petition to be unconditional in the case of Loizidou v. Turkey (preliminary objections) (1995).
In late 1988 the Republic of Cyprus also lodged a declaration accepting the right of individual petition now covered by Article 34 of the European Convention on Human Rights. The' declaration included, however, a paragraph stating that the Cypriot Government would not recognise the competence of the Commission to review applications referring to acts or omissions concerning "measures taken by the Government of the Republic of Cyprus in dealing with the situation resulting from the continuing invasion and military occupation of a part of the territory of the Republic of Cyprus by Turkey". Neither the Committee of Ministers nor the Commission has as yet determined the acceptability of this restriction on the Commission's competence.
ii. The compulsory jurisdiction of the Court: Article 32
Article 32 (1) of the Convention describes the compulsory jurisdiction of the Court as follows:
The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47.
The articles referred to empower the Court to review inter-State complaints and individual applications and to give advisory opinions on legal questions concerning the interpretation of the Convention under certain circumstances.
4. Proceedings before the Court
In order to avoid confusion for readers unfamiliar with the institutions and procedures prevailing under the Convention prior to November 1998, the article numbers cited in the following sections are those from the Convention as amended by Protocol No. 11.
i. Conditions of admissibility: Article 35
Article 35 of the European Convention on Human Rights reads:
1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2. The Court shall not deal with any application submitted under Article 34 that
a. is anonymous; or
b. 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.
3. The Court shall declare inadmissible any individual application submitted under Article 34 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.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.
Paragraphs 1 and 4 of Article 35 apply to both inter-State and individual applications, whereas paragraphs 2 and 3 apply only to individual applications.
a. Exhaustion of domestic remedies
All international human rights judicial or quasi-judicial bodies with competence to review individual complaints against a State apply the rule that an individual must exhaust all available domestic remedies prior to filing a formal complaint with the international supervisory body. This reflects a general principle of international law that is founded on the belief that a State must be afforded every possible opportunity to rectify any violation of its international obligations through its own domestic legal channels, prior to being subjected to international review and/or supervision (Hentrich v. France (1994)). It is only if State authorities fail to re-establish a violated right or to provide just satisfaction for its violation that the Court will entertain the matter.
The term, "exhaustion of domestic remedies", has been interpreted to require an applicant to exhaust all remedies provided for by domestic law, administrative as well as judicial. An individual applicant is, how ever, only required to exhaust those remedies open to him as a right, not a privilege. Therefore, although he must lodge appeals with all judicial bodies available to him, he is not obliged to seek certain social services (Appl. No. 214/56) or to seek a pardon from the executive, a process considered to be an "extraordinary remedy" and therefore not an effective one (Appl. No. 8395/78). The same is true of an application for reopening of proceedings. When considering whether an applicant has exhausted domestic remedies, both the substance of the case as pursued at the domestic level and the effectiveness of the remedies available through the domestic system will be considered. An applicant is not obliged to invoke the European Convention on Human Rights in the domestic courts, so long as he has invoked domestic legal provisions with an essentially similar content (Cardot v. France (1991) and Sadik v. Greece (1996)) . However, an applicant must invoke the Convention where it provides the only legal basis for a given claim (DeWeer v. Belgium (1980)). An applicant must also pursue any domestic procedural means which might prevent a breach of the Convention (Barbera, Messegué, and Jabardo v. Spain (1988)).
It is for the respondent State to raise any objection that a given applicant has not exhausted domestic remedies (Appl. No. 91 20/80), but it is also for the respondent State to meet the burden of proving the existence of available and sufficient domestic remedies (Appl. No. 901 3/80). Respondent States also have the burden of proving that the existing remedies are effective. In the event that an action for damages exists in respect of a violation of a right, such a remedy must be practical and not just theoretical (Navarra v. France (1993)). Similarly, the recognition of the principle that an individual has a right to compensation for expropriated property is insufficient where the individual remains both dispossessed and uncompensated after an unlawful expropriation (Guillemin v. France (1997). Available domestic remedies may be found to be ineffective on the grounds that established precedent in a given State's law are clearly against the applicant's chance of success (Keegan v. Ireland (1995)) or indeed where the subject matter of an applicant's case corresponds directly to a case already disposed of by the domestic authorities (Appl. Nos. 7367/76 and 781 9/77). Appeals against expulsion or deportation orders that do not serve to suspend the proposed orders cannot be considered effective remedies, at least in respect of claims under Article 3 (prohibition of torture, inhuman or degrading treatment or punishment) (Appl. Nos. 10400/83 and 10564/83). Finally, should an applicant's legal counsel state unequivocally that a pursuit of a particular remedy would have no prospects of success, the applicant may be absolved from the obligation to pursue the matter (Appl. No. 10000/82). However, if counsel only expresses doubts as to a successful outcome, an applicant must comply with the exhaustion requirement of Article 35 (1) (Appl. No. 10789/84).
It is important to note that where an application has been declared inadmissible for non-exhaustion of domestic remedies, this is only a temporary obstacle; the Court may re-examine the same application if submitted once the applicant has exhausted available domestic remedies.
b. The six-months rule
Article 35 (1) requires applicants to lodge their applications with the Court within six months from the date of the final domestic decision on the matter at issue. This provision, which constitutes a restriction on the right of petition, must be interpreted narrowly. A simple letter from an applicant will be considered as an application" for the purposes of the six-months rule, where the purpose of the application is sufficiently clear (Papageorgiou v. Greece (1997)). The date from which the six-months' time-limit runs refers not only to the date on which a domestic decision was taken, but also to the date on which the applicant became aware of this decision and as a result was able to file an application with the Court.
The requirement of a six-month of limitations" can only reasonably apply in instances where there is a concrete and identifiable event. Thus, in cases where no appeal is available against a decision or act of a public authority, the time limit begins to run from the moment the final decision or act takes effect (Appl. Nos. 8206/78 and 8440/78). Where an application concerns the enforcement of a legal provision whose effect is to produce a violation that is continuous in time, there is no possible starting-point" from which the six-month time-limit can run (Appl. No. 8317/78).
c. Conditions of admissibility for individual applications: Paragraphs 2 and 3 of Article 35
Articles 35 (2) and (3) of the Convention set out conditions of admissibility applicable only to individual applications. Under these provisions, the Court cannot deal with any application that is anonymous, substantially the same as a matter which has already been examined by the Court, or has already been submitted to another procedure of international investigation or settlement. In either of the two latter circumstances, the Court can entertain an application if it contains relevant new information.
The condition provided for in para. 2 (b) of Article 35 reflects the principle that the same matter should not be tried more than once: res judicata. The text of the article lays down two conditions relating to the "substantial similarity" criterion: the first applies to applications already examined by the Court and the second to applications submitted to other international bodies. The problem raised in the latter case was not of great practical importance when the Convention was first implemented, but has become increasingly important because of the establishment of other international bodies dealing with human rights matters, such as the Human Rights Committee (International Covenant on Civil and Political Rights). The notion of " new information" encompasses only facts that were not known at the time of the previous application or have occurred since the Court originally disposed of the matter.
Article 35 (3) requires the Court to declare an application inadmissible if it is 'incompatible with the provisions of the present Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of petition". The concept of incompatibility has been applied in in stances when the subject matter of a given application is considered to have fallen outside the scope of the competence of the Convention organs.
The second term in Article 35 (3), "manifestly ill-founded", has given rise to an abundance of case-law. This condition of admissibility prevents the Court from being obliged to examine an application on the merits if, on a preliminary examination, it does not appear to indicate a violation of the Convention.
The third term of Article 35 (3), "abuse of the right of petition", has not often been invoked in rejecting an application as inadmissible. The term has, however, been invoked where an applicant failed to respond to several requests in relation to the review of his application and where an applicant has, for example, made defamatory statements vis-à-vis the representatives of the respondent government.
ii. Proceedings on the merits
Once the Court declares an application admissible, Article 38 of the Convention comes into play. This article provides for two courses of action.
a. Examination of a case
Paragraph 1 of Article 38 calls for the Court to pursue its examination of an admitted case together with the representatives of the parties. It also leaves it to the discretion of the Court to undertake any investigation that it deems necessary. Should it do so, the provision calls on the States concerned "to furnish all necessary facilities".
Unless there are exceptional circumstances" all hearings before the Court are open to the public. In all circumstances, the judgment is announced publicly. The Court is not required to arrive at a unanimous decision and each judge is entitled to submit his own opinion which will be published with the majority opinion.
b. Friendly settlement proceedings
Paragraph 2 of Article 38 places the Court at the disposal of the parties, "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 protocols thereto". Such proceedings are conducted on a confidential basis.
Article 38 (1) (b) describes the two aspects of friendly settlement proceedings. The first is mediation between the parties: the second is the principle governing such mediation, according to which any friendly settlement is made "on the basis of respect for human rights". The Court's role in any settlement procedure is thus to guarantee the collective interest in respect for human rights - even in a specific case where the parties agree to settle a given matter between themselves. This function of the Court as impartial protector of human rights is particularly important where the consequences of a given violation go beyond the interest of the individual applicant who brought the case and where those consequences may require the State involved to adopt general measures to preclude future violations of the same right vis-à-vis other individuals. Many friendly settlements have been reached when the government of the respondent State has taken administrative or, in some cases, legislative measures to rectify a possible violation of the Convention.
Should a friendly settlement under Article 38 (1) (b) be effected, the Court strikes the case out of its list "by means of a decision which shall be confined to a brief statement of the facts and of the solution reached" (Article 39). No further action is then taken on the case.
5. Other Court procedures
i. striking a case off the list
The Court may sometimes strike a case off its list, a procedure that is governed by Article 37 of the Convention, which provides for this action when circumstances lead to the conclusion that the applicant does not intend to pursue his application, if the matter has been resolved, or if the Court establishes that it is no longer justified to continue the examination of the petition. The Court must retain any case on its list "if respect for human rights as defined in the Convention and the protocols thereto so requires".
Striking a case off the list is of particular importance where the withdrawal of the application or the applicant's inactivity is based on a prior agreement between him and the respondent State, without the participation or influence of the Court. Unlike in the "friendly settlement" procedure provided for in Article 38 of the Convention, because this informal form of settlement falls outside the Court's investigative procedures, it does not necessarily have to be concluded "on the basis of respect for human rights". However, the Court is competent to examine an application ex officio, even where an applicant has ceased to pursue or has declared his intention to withdraw his application.
ii. Third-party interventions
Article 36 governs third-party interventions before the Court. Paragraph 1 of this article empowers any High Contracting Party one of whose nationals is an applicant both to submit written comments and to take part in hearings in the case.
Paragraph 2 permits the President of the Court to invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant also to submit such comments or to participate in such hearings. Such discretionary third-party interventions must be "in the interest of the proper administration of justice."
iii. Just satisfaction: Article 41 judgments
Article 41 of the European Convention on Human Rights provides that if a High Contracting Party is in breach of its obligations under the Convention, and if its domestic law does not provide for adequate reparation of that breach, then "the Court shall, if necessary, afford just satisfaction to the injured party'. In many cases, the Court has found that the finding of a violation is in itself just satisfaction and in others that a token amount of money is sufficient. On the other hand, in some cases the Court awards substantial sums of money to successful applicants, including interest when the Government unduly delays payment. On occasion, the Court has ordered the return of unlawfully expropriated property to an applicant.
Although the Court will usually address claims for just satisfaction under Article 41 in its judgment on the substantive aspects of the case, it sometimes exercises the option of deciding the issue in a separate judgment.
U. The Committee of Ministers of the Council of Europe
The Committee of Ministers of the Council of Europe is composed of the foreign ministers of all member States of the Council. Therefore, unlike the members of the European Court of Human Rights, the members of the Committee of Ministers serve in their capacities as government representatives, and not as individual human rights experts. The day-to-day work of the Committee of Ministers is normally carried out by their Deputies (the Ambassadors of the member States). The power of the Committee of Ministers to request advisory opinions from the European Court of Human Rights is addressed above, p. 141.
Article 46 (1) provides that the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. And Article 46 (2) provides "The final judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution".
This supervision consists first of all of ensuring the payment by the government of any just satisfaction awarded by the Court. In exceptional cases where the payment of a mere monetary award cannot adequately redress the applicant's situation, the control may also encompass other measures to be taken by the government, such as pardon, reopening of proceedings, striking out a conviction from the criminal records, granting of a residence permit, etc. If adequate measures are not taken, the applicant may submit his grievances to the Committee of Ministers. The Committee also supervises the measures taken by the respondent State to ensure that new violations do not occur in the future (mainly changes of legislation, of jurisprudence or executive regulations or practice, but sometimes also practical measures such as the construction of prison facilities, police education or the appointing of judges). Applicants or other interested parties may address comments on the adequacy of proposed measures to the Committee. Once the Committee has concluded that adequate execution measures have effectively been taken it adopts a public resolution stating that its supervision of the execution is complete. The resolution also contains information on the different measures adopted by the respondent State to comply with its obligations under the Convention.
So far no State has refused to give effect to a judgment of the Court or a decision of the Committee of Ministers.* In view of this general compliance the Council of Europe has not adopted any special rules to provide for sanctions against a recalcitrant respondent State. The most serious sanctions are, however, contained in the Statute of the Council of Europe. Article 3 of the Statute provides that respect for human rights is a fundamental principle underlying participation in the Council. Article 8 of the Statute empowers the Committee of Ministers to suspend or even expel from the Council any member State guilty of serious human rights violations.
V. The Secretary General of the Council of Europe
1. The depository function of the Secretary General
The Secretary General acts as the depository for the European Convention on Human Rights, as is the case for all other conventions concluded by the Council of Europe. In some instances, the depository function is quite limited, for example in regard to the Convention itself: under Article 59 (4), the Secretary General only informs member States of the Council of Europe of the names of ratifying or acceding States. The Secretary General is required to inform all High Contracting Parties of any State's denunciation of the European Convention of Human Rights under Article 58.
Under Article 15 of the European Convention, any State derogating from its obligations under the Convention must keep the Secretary General fully informed of the measures taken and the reasons for so doing. The derogating State must also keep the Secretary General informed when it lifts the measures and returns the Convention to full operation. Throughout the period of derogation, the Secretary General has no express obligation to inform other High Contracting Parties of the derogation or its terms.
2. Other functions of the Secretary General
In addition to the Secretary General's function as a depository and, in some instances, a conduit for information to the High Contracting Parties to the Convention, the Secretary General performs other more direct functions in the supervision of the Convention. Article 52 empowers the Secretary General to request from any High Contracting Party "an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of this Convention". The Secretary General only occasionally requests such explanations. So far, these requests have referred to a given issue and were addressed to all High Contracting Parties, rather than to a particular State. It is important to note that Article 52 does not confer any power on the Secretary General to take any action in relation to information received from any High Contracting Party.
* under the system in force before November 1998, in all cases not referred to the court, it was the committee of Ministers that decided whether or not there had been a violation of the convention.