European Court of Human Rights
The European Court of Human Rights (ECtHR) is an international court that is not part of the European Union. It ensures that states follow the European Convention on Human Rights (ECHR) and hears appeals from individuals or groups who claim that their rights under the convention have been breached. These fundamental rights include the right to life, family life, protection from torture, protection of property, and freedom of expression.
How does the ECtHR work?
The ECtHR decides whether a state has violated the Convention on Human Rights. There are two types of application: ‘individual’ applications brought by a person or group, and ‘inter-state’ applications made by one state against another. The vast majority of cases are initiated by individuals claiming a violation of the convention has taken place. In final judgments the court makes a declaration that a state has violated the Convention and may order them to change national law to comply and pay for damages and legal expenses. Its decisions and judgments are binding. Up until three months after the judgment parties can request a review. Although states have agreed to carry out ECtHR rulings there is no practical means of enforcing them so some countries have ignored decisions.
Domestic remedies must have been exhausted before a case can be handled at the ECtHR. This means that violations of the Convention must have been brought to national courts before the ECtHR will consider the case. There are two reasons for this. First, it provides the state an opportunity to rectify the alleged violation at the national level. Second, it reduces the considerable workload of the court, which has to deal with over 50,000 new applications each year. To reduce this workload, before a case is examined the Court decides whether the individual has been seriously disadvantaged or whether a similar case is being dealt with – if so the case is not heard.
The number of judges working at the court reflects the number of signatory countries, currently 47. The judges are independent, so they do not represent their countries. The Parliamentary Assembly of the Council of Europe elects the judges after three candidates are proposed by each state. The judges serve non-renewable terms of nine years.
In 1950 the European Convention on Human Rights was signed, which obligates the countries who have signed it to protect various civil and political rights for their citizens and anyone within their jurisdiction. It was drawn up in the aftermath of the Second World War to prevent the serious human rights violations that had been perpetrated. British lawyer Sir David Maxwell-Fyfe was instrumental in the drafting following his involvement in the Nuremberg Trials.
In 1959 the ECtHR was established to enforce the Convention. Initially the court operated part-time alongside a Commission which examined all applications before taking them to the court for judgment. To simplify the system, in 1998 the two were merged into a single full-time court based in Strasbourg. This led to a huge rise in the caseload of the court, prompting many attempts to make the court more efficient.
In 1998 the Human Rights Act (HRA) incorporated the provisions of the Convention into UK law. This allowed UK courts to remedy a breach in the convention without requiring the ECtHR and obliged UK courts to interpret legislation by the rules of the Convention. The Convention has been extended by 15 new protocols. Non-discrimination and the abolition of the death penalty, for example, were added in 2005 and 2003 respectively.
All EU member states are signatories to the ECHR but the EU itself is not. The Treaty of Lisbon in 2009 began a process to make the EU join the other 47 signatories of the Convention on Human Rights. When this happens it will be possible for individuals to apply to the ECtHR for a review of infringements of the Convention by the EU institutions. This would make the ECJ bound by the precedents of ECtHR case-law. However, in 2014 the European Court of Justice (ECJ) rejected the EU’s accession to the ECHR on grounds that it conflicts with current EU law.