Grappling with and of the European Court of Human Rights


Introduction


Each year tens of thousands of people who consider that their fundamental rights have been breached turn to the European Court of Human Rights. The European Court, which, for over half a century, has allowed individuals to have states held accountable and whose decisions ultimately affect everyday lives.


The Court was created in 1949, in the aftermath of the Second World War, when a number of countries joined forces to set up the Council of Europe in order to promote human rights, democracy and the rule of law across Europe. They adopted the European Convention on Human Rights setting up a system that was unique at that time including a binding supervisory mechanism in 1959. Reflecting the Member States desire never again to experience the atrocities committed in the mid 20th Century, twelve states signed up. Currently, there are almost 50 member states. The Court is based in Strasbourg, in the Human Rights building. The Bench is composed by one judge for each member state of the Council of Europe. The judges who are elected by The Parliamentary Assembly of the Council of Europe are fully independent and do not represent any national interests in dealing with cases. The judges are assisted by the Registry which employs qualified staff from all the Member States.

Court Functioning


When applications arrive at the Court they are sorted and then dispatched to one of the units of the registry which prepare the files for the judges. All the decisions are taken by the judges sitting as a single judge formation, a three-judge committee, a seven judge chamber or a grand chamber of seventeen judges for the most important cases. The procedure is conducted in writing but in a very few cases the court also holds public hearings- all of which are filmed and can be viewed via webcast. The Court receives a huge number of applications every year however the vast majority of them are rejected at the admissibility stage because the criteria for applying to the Court have not been met.


For example, since the applicants have not first raised their case before the national courts, for that reason the Court delivers Judgment on the merits and only a small proportion of the cases brought before it it then rules on whether or not there has been a violation of the Convention and it may award financial compensation (art. 41). Since it was first set up, the Court has completed the examination of hundreds of thousands of cases. This is hardly surprising given that the number of individuals covered by this system totals around 830 million people- that is the number of potential applicants living in the countries which have undertaken to comply with the Convention. In reality, however, there are even more potential applicants, non-europeans whether they are refugees or other individuals who happen to be within the jurisdiction of a member state. They are also protected.


Court Jurisprudence


For instance, the Court found a violation of the Convention by Italy following the forced return of Somalians and Eritreans to Libya from where they had originally set out by boat for Europe. The Court held that they would be at risk of ill-treatment if they were repatriated.


In exceptional cases, the scope of the Convention can also extend beyond Europe's borders. The Court found the United Kingdom to be in breach of the Convention following the deaths of civilians in Iraq during security operations carried out by British forces. The Court held that, as an occupying power responsible for maintaining security in the region concerned, the United Kingdom should have conducted an investigation into civilian deaths in which soldiers were involved. A state can thus be held responsible for events occurring outside its territory but states can also be held accountable for acts committed within their jurisdiction by another state if they were aware of them.This was the case with the Former Yugoslav Republic of Macedonia which was found to be in breach of the Convention because a person suspected of terrorism and was tortured while on that state's territory. Torture had been committed by CIA agents but in the presence of officials of the state concerned numerous rights are protected under the Convention.


The most fundamental is the right to life and the death penalty which is no longer applied in

any member state of the Council of Europe. Some cases concern the treatment to which the population is subjected in conflict zones. Other cases relate to the state's failure to protect individuals. The Court found a violation by Turkey for an infringement of the right to life

and discrimination against women. The case concerned physical assaults carried

out repeatedly by a man on his wife and his mother-in-law. The husband later killed his mother-in-law. The Court has also had to rule on the sensitive issue of end-of-life. In a

case against France it held that there would not be a violation of the Convention. In the event of implementation of a decision by the French courts to authorize the withdrawal of artificial nutrition and hydration from a person in a vegetative state. Another fundamental right is the prohibition of torture and inhuman or degrading treatment Greece was found to be responsible for the torture of an unlawful migrant from Turkey whose boat was stopped by Greek Coast Guard officials. While he was attempting to reach Italy. The man had then been beaten and sexually assaulted by one of the officials.


In numerous other cases, brought against various countries. The Court has identified problems with overcrowding in prisons and inhuman and degrading conditions of detention. But most of the cases coming before the Court concerned the right to a fair hearing and especially the length of domestic proceedings. The Court has received thousands of applications from individuals who in some cases have waited more than 20 years for a final judgment. In their own country there are also very many cases concerning the failure to execute final judicial decisions. For example, Anatoly Stepanovich Dyatlo who worked on the Chernobyl site following the nuclear disaster, had to wait several years before the Russian authorities paid him the compensation awarded by the domestic courts for his health problems. The Court in Strasbourg held that a state could not cite budget shortages as a reason for not executing a judicial decision.


On the Convention


The rights and freedoms contained in the Convention are set out in general terms and the Court has to interpret them in the context of today's society. In order to avoid the Convention in becoming a document that is out of touch with contemporary issues. For instance, the Court has delivered judgments in several cases concerning discrimination against homosexuals whether in the context of the criminalization of homosexuality. The ban on homosexuals in the Armed Forces or the organization of Gay Pride marches and with regard to civil partnerships it has also had to rule on environmental issues.


In a case which led to a finding against Italy and subsequently to the closure of a hazardous industrial plant, the Court found that the authorities had not informed people living near the plant about the risks and the procedure to follow in the event of an accident. Even though there had already been one explosion and numerous cases of poisoning, the Court has also ruled on issues that were unimaginable when the Convention was adopted for example in cases concerning new technology. In one case, it found that Turkey had breached the Convention by blocking access to the entire Google Sites and Internet hosting service. The Court held that restricting access to the Internet. In this way, it was a breach of freedom of expression.


Some of the cases dealt with by the Court relate to politically sensitive issues. One such example was the case brought by Yulia Tymoshenko, the former Prime Minister of Ukraine and leader of one of the country's main opposition parties. She was charged with abuse of power following the change of government and being placed in pretrial detention the Court found that Miss Timoshenko's detention had been arbitrary and unlawful. But it had not been the subject of a proper review and had it had been motivated by reasons other than the suspicions against her. Some cases provoked a strong reaction from members of the public. The Right set forth in the Convention applies to everyone including individuals who have committed very serious offenses. Many people find this difficult to understand. In a case against Germany which resulted in a finding of a violation the court ruled that it is not permissible to threaten someone with torture even if another person's life is at stake. German police officers had threatened to torture an individual who had abducted and murdered an 11 year old boy in order to force him to reveal the location of the victim whom they believed to be still alive.


These are just a few examples of cases the Court has found many thousands of violations the court may find that a state has indeed breached the Convention but in practical terms what is the impact of a judgment finding a violation the repercussions are very far-reaching. As states are bound to comply with and execute the judgments that concern them ensuring that the Court's judgments are respected and that the necessary remedial action is taken to prevent similar violations of the Convention in future is the task of the Council of Europe's executive arm.


The Committee of Ministers


Consisting of the Foreign Affairs ministers of the council's member states or their permanent representatives. The committee of ministers meets regularly to verify the execution of court judgments and cases remain on its books until it is satisfied with the measures taken by the

state concerned. The judgments delivered in Strasbourg have led to numerous changes in national legislation affecting the lives of everyone. They have also opened the way for retrials of individuals convicted following an unfair trial for the restitution of expropriated properties to their owners or the payment of compensation for the closure of factories causing pollution and for the release of individuals who have been detained unlawfully in recent years. Several high-level conferences on the future of the court have emphasized the importance of the principle of subsidiarity. Under this principle cases should only reach the court when the fundamental rights of the individuals concerned have not been recognized directly at national level. However the Court still receives a great many similar repetitive applications because states have not applied the Convention or have not enacted legislation to implement and safeguard the rights it protects.


Conclusion


A number of reforms have been implemented to enhance the courts effectiveness. Ultimately however it is at the national level that the Convention has to be applied to governments. It must take action to ensure that the Convention is respected in their country. In the meantime the Court continues to serve as the bastion of human rights in Europe a last resort for millions of

people as it has been for over half a century.