“The European Court of Human Rights: jurisdiction, right to complain and procedures”

By Av. Jordan DACI, M.A (Ph.D. Candidate)

Until the year 1998, under the framework of the European Convention of Human Rights and Fundamental Freedoms (in following as ECHR), its control mechanism was composed by the Human Rights Commission established in 1954 (who was demolished in 1999) and the European Court of Human Rights. [1] With the entry into force of the Protocol no. 11, these to bodies became a single one, the European Court of Human Rights.

The Court is the main instrument for the protection of human rights and freedoms in the Europe. Its jurisdiction is compulsory for all the states parties to the ECHR.  The number of judges is equal with the number of the High Contracting Parties and the so-called national judge (ex officio) is involved in the trial process against the state party (on behalf of which he or she has been elected) just with the aim to facilitate the understanding of the national legislation of the country against which has been lodged the application. [2] The Court (Article 34) may receive applications from any person, non-governmental organization 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, or any High Contracting Party which may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party (Article 33).

Until the year 2003, the Court has examined two inter-state applications under the framework of the new system established with the Protocol no.11, one interstate application under the framework of the old system and other 19 applications have been examined by the Human Rights Commission under the framework of the old system. [3]

The old system was not very much efficient due to a conjunction of competencies and the double control, without excluding other reasons. According to the old system, the applications were first examined by the Human Rights Commission, which was composed by representatives of state parties (a representative for each state party) to the ECHR and form the Committee of Ministers.

The Commission used to be convened 8 (eight) times in a year with two weeks plenary session examining the application in committees composed by three persons (the same as Court today). The procedures for examining an application did not exclude the negotiations for a friendly settlement of the case. At the end as a final step, the commission used to prepare a report in expressing its opinion regarding the violation or not of the ECHR, and submit it to the Committee of Ministers. Within the period of three months, the application would have been submitted to the old Court. On the other hand the Committee had the competence to determine the amount of compensation (or just satisfaction). Also the Committee would examine the information provided by state parties upon enforcement of the Court decisions by evaluating it with special resolutions. [4] We can give as an example several resolutions addressed to Turkey concerning the enforcement of judgments delivered by the Court in regard to several applications lodged against Turkey. This process ended with a full enforcement of these judgments regardless of the resistance made by Turkey. The Committee exercises this competence also under the framework of the new system. The lack of the efficacy of the old system can essay be verified just by referring to the statistical data. The Old Court examined less than 100 applications per year; meantime the number of applications lodged with the Human Rights Commission at the end of its mandate reached the number of 4000 applications. While the New Court examines thousands of applications per year (9 351 final judgments and 888 judgments in the year 2001 and 31 393 applications lodged and 13 858 applications registered in the year 2001. [5]

The current number of judges of the European Court of Human Rights is equal with the number of Council of Europe member states that are High Contracting Parties to the ECHR. [6] The judges are elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party. [7]

The judges are elected for a period of six years and may be reelected, but their terms of office ends even before when they reach the age 70 years old, or when they resign or after three years period for the judges those the terms of office ends at the end of the initial period of three years (Article 23 of ECHR). No judge may be dismissed from his office unless the other judges decide by a majority of two-thirds that he has ceased to fulfill the required conditions (Article 24). The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. The judges shall sit on the Court in their individual capacity. Furthermore, during their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office. All questions arising from the application of this paragraph shall be decided by the Court.

To consider cases brought before it, the Court sits in committees of three judges, in Chambers of seven judges, in college of five judges and in a Grand Chamber of seventeen judges. Beside the judges the court has its own administration which on June 30, 2002 was composed of 348 employees, from which 187 were full-time employed (including 76 attorneys) and 161 part-time employees (including 78 attorneys). [8]  The Courts has its own budget, which reaches the amount of 29.8 millions Euro, constituting 17, 6 % of the Council of Europe budget. [9]

The Right to complain

In accordance with the article 33 and 34 of the Convention, the Court may receive application form any person, (natural and legal) [10], non governmental organization 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, including application form any High Contracting Party against another High Contracting Party. While the article 36, allows the intervention of a third party (amicus curia [11])which has the right to submit written comments and to take part in hearings.   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.

Until now, as it has been above-mentioned, the number of inter-state applications is very low, because states are afraid to exercise such right against other High Contracting Parties. The exercise of this right might serve as a good reason for other High Contracting Parties to exercise such right against them. Under all kind of circumstances the subject lodging an application with the European Court of Human Rights shall prove the fact of being a victim of human rights violation, as foreseen in the Convention or in the Protocols thereto. However, can be considered as being a victim also a person who proves that personally has been threaten by the application of a doubtful law [12]. In the case Norris, the Court dealt with the case when the homosexual relations were legally foreseen as a criminal offence, but the respective provisions were not enforced regardless of the fact that they were still not demolished. While examining this case, the Court emphasized that the criminal incrimination of the homosexual relations, constituted a permanent threat and serious interventions to the right to privacy of the applicant.  In the same way the Court may receive application from any subject that can be a victim of a violation allowed by legal norms, regardless of the fact whether they are used or not against such subject. [13] Also beside the natural persons, the Court may receive application form legal person as long as the human rights foreseen in the Convention are applicable for legal persons as well as in accordance with their specific juridical nature. [14] However, beside from these subjects, the Court may also receive applications from persons who indirectly have been a victim of human rights violation.  These persons can be the spouse, the prenatal persons, and the children, including even the grand soon regarding his uncle. The latter has been considered by the Court as a victim regarding the murder of his uncle [15]. The meaning of the word victim is interpreted by the Court in....

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