The European Court of Human Rights (ECHR)
The European Court of Human Rights (ECHR)
The European Court of Human Rights (ECHR) was established in 1959 to uphold the European Convention on Human Rights and Fundamental Freedoms. The court has made more than 10,000 judgements since its inception. Any individual victim of a human rights violation, family member(s) of victims or group of victims can submit a case to the ECHR. States that have ratified the convention can also bring another state to the Court, however this is extremely rare. Complainants may be of any nationality, however, states can only be brought to the Court if they have ratified the European Convention on Human Rights.
If the Court finds that the European Convention on Human Rights has been violated, the Court will order one or more remedies for the state responsible for the abuse. Remedies often involve an order to the state to release a prisoner and/or pay financial compensation to victims.
The Court is based in Strasbourg, France. There are 47 judges at the court, one from every state that has signed on to the Convention. Each state nominates three candidates, and the judges are then selected by the Parliamentary Assembly of the Council of Europe. Judges are elected for a term of nine years. Judges make decisions based on their legal and human rights expertise and are not to be influenced by the interests of their own or other states.
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Since the establishment of the main Convention, 14 protocols have been adopted that further clarify the protections and freedoms of the convention and defend additional rights. To read the original convention, as well as the additional protocols, click here.
Any individual or group who is/are the direct victim(s) of a human rights violation can bring a case to the ECHR. (Family members are also considered direct victims, however in cases involving the killing of someone over what he or she said or wrote, the ECHR considers such acts as violations to the right to life, and does not rule on them as FOE violations.) Non-government human rights organisations that have faced state repression in their work can appeal to the court as victims. Those submitting cases do not need be a national of any of the states that are under the Court’s jurisdiction. While legal representation is not required to submit a case, it is recommended that petitioners commission the help of a lawyer from the beginning. A lawyer can ensure an application is properly formulated and thoroughly articulated.
Applications
Application forms for submitting cases can be found on the ECHR’s website. The ECHR is currently running a pilot program allowing applicants using the Swedish or Dutch language to submit their applications online. If successful, the trial program will be expanded to all applications. To submit an online application in Swedish and Dutch click here. All other applicants should submit applications by mail to:
European Court of Human Rights
Council of Europe
67075 Strasbourg Cedex
France
Applications must contain a brief summary of the facts, an indication of the Convention right(s) the complainant believes have been violated, the remedies already undertaken and copies of the result of such remedies, such as decisions in domestic courts. Keep in mind that no documents will be returned and only copies should be sent. If the applicant wishes to be anonymous, his or her real name must still be included on the application form with an indication that he or she wishes to be anonymous and an explanation as to why. (The President of the Court will decide whether to grant the applicant anonymity, at which point the individual(s) can decide whether they wish to go ahead with the case.) Applications must be written in English, French or in an official language of one of the States that have ratified the Convention.
Admissibility criteria
Applications must demonstrate the following in order to be considered admissible by the court:
1)An application must concern a violation of the European Convention of Human Rights and Fundamental Freedoms.
2)Individuals or groups who are bringing cases forward must have first exhausted domestic remedies. This usually means that the party submitting the case must have already appealed to the highest court of the state, and that this court refused to hear the case, took an unreasonably long time processing the case or produced a response unsatisfactory to the interests of human rights. In other words, the state itself must have been given an opportunity to redress the violation through its own institutional means. In cases where domestic remedies have shown themselves to be ineffective, it is not necessary for applicants to appeal to these domestic mechanisms, however applicants should provide evidence showing the remedy’s ineffectiveness.
3) Applications must be submitted within six months “following the last judicial decision in the case”.
4) The applicant must be a direct victim of the violation(s) that the application concerns; family to a victim of a human rights violation is considered a direct victim in cases of violation of the right to life.
The application must be lodged against a state that has ratified the Convention before the violation took place. Click here to see which states have ratified the Convention. Note: the first column of the table refers to the convention, while the additional columns refer to the additional protocols (click on the number in the first row for details of the protocols). A ‘P’ indicates the state has ratified the protocol.
5) According to Protocol 14, an amendment to the European Convention on Human Rights that entered into force in June 2010, those submitting cases must now show the violation caused them “significant disadvantage.” The significant disadvantage clause does not apply to cases that were not “duly considered” by domestic courts or cases that require examination in order for the Court to uphold respect for human rights as defined by the convention. The language of “significant disadvantage” and exceptions to this requirement are so vague that it is unclear how this clause will be applied in practice. The first case thrown out on the grounds that “significant disadvantage” involved a claim by a man over a € 90 bus fare. The case was reported on by the ECHR blog:
http://echrblog.blogspot.com/2010/06/first-decision-on-lack-of-significant.html
If a case is “admissible,” the Court proceeds to consider the case on its merits. The government of the state that the application has been lodged against is notified, and each party presents additional information and evidence on the alleged violation(s). It is recommended applicants seek the representation of a lawyer at this stage and the Court may provide legal aid to some parties.
If both parties are willing, the Court will oversee a friendly settlement through negotiations with the parties. If ongoing violations related to the case are likely to occur, the Court may order the state to take “provisional measures” to protect the individual(s) during the interim period. Interim measures are most often applied when individuals face deportation or extradition.
For cases that are “repetitive” meaning they are very similar to other cases brought to the Court in the past, a three-judge member committee has the power to decide on cases based on their merits and the well-established case law of the Court. The committee decisions are final.
Other cases are considered by one of five seven-member Chambers, each of which have a president and vice president and will include the national judge of the state concerned. Often, the Chamber may order a basic remedy, such as compensation, based on the written material provided by both parties and will consider the case closed. Only rare cases are provided a public hearing.
In cases of massive or egregious human rights violations, cases are automatically referred to a 17-judge Chamber, which includes the Court’s president and vice-president and all of the presidents of the chambers, in addition to ten rotating judges. The Chambers’ decisions on cases are made by a majority vote.
Either party of a case that has been heard by a seven-member Chamber may request an appeal to the Grand Chamber within three months after the judgement. This request is made to a panel of judges from the Grand Chamber and is only granted in exceptional cases. When this referral occurs, the judges who heard the case in the initial Chamber are excluded. Chambers may also relinquish cases to the Grand Chamber when it involves an especially complicated interpretation of the Convention, however such a relinquishment is unusual. The Grand Chamber judgment is always final, however applicants may resubmit a case if it contains fresh evidence.
The Court currently has a backlog of more than 100,000 cases and, as a result, can take up to seven years to process a case. Protocol 14, in effect since June 2010, has streamlined some of the Court’s processes, especially in regards to admissibility, in order to make the court more efficient. However, more reforms are necessary. In late 2009, a group of several dozen NGOs, including many IFEX members, signed a joint statement that aims to guide future reforms to the ECHR. For example, the statement has stipulated that Council of Europe states should provide the Court with adequate resources to function effectively and that future reforms should not allow the charging of fees, a proposal that has been suggested in the past. For more on the joint statement by civil society groups, see: http://www.amnesty.org/en/library/info/IOR61/009/2009/en
For its part, the member states of the Council of Europe came up with an Action Plan in a conference in Interlaken, Switzerland in February 2010 in which the states committed themselves to work on reforms that would improve the efficacy and rights-defending role of the Court. To see the Interlaken Declaration that came out of this conference, see:
http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.File.tmp/final_en.pdf.
Experts, representatives of human rights organisations and others can gain permission from the Court to intervene in the proceedings by filing pleadings and/or to take part in public hearings. In addition, states that are party to the Convention can intervene in cases where the applicant is a national to that state. The purpose of such intervention is to ensure the proper administration of justice and third party interveners should thus conduct themselves in a manner that shows no bias. Third party submissions often include the basic facts of the case and provide additional context or legal interpretation, such as information on the human rights repercussions of a law or legal decision.
Individuals or organisations who wish to intervene in cases must write to the President of the Chamber that is overseeing the case within 12 weeks of the Court notifying the state that a case has been launched against it. In this letter, an organisation should provide brief details of its operations and credentials in addition to stating the issues that the intervener would like to address. This letter is then sent to both parties of the case, and each party may respond to the third party, who is then invited to make further comments.
When states are informed of cases against them, they are listed in the “list of weekly communicated cases” on the left-hand side of this ECHR web page.
Here are some examples of statements made to the ECHR by third party intervener organisations:
- Kaos GL v. Turkey (2009 submission): Kaos GL is a LGBT magazine that was censored on the grounds of ‘public morality’. Third party interveners, including IFEX members ARTICLE 19 and Human Rights Watch, argued vague claims to “morality” are not adequate to censor expression. http://www.hrw.org/en/news/2009/11/04/amicus-brief-article-19-miller-institute-global-challenges-and-law
- MGN Ltd. v. United Kingdom (2009 submission): MGN Ltd. is a news company that was forced to pay the legal costs of celebrity Naomi Campbell in a defamation case. The legal costs were 300 times the actual damages awarded to Campbell. In their submission to the ECHR, third party interveners argued the constitutional fee agreement that charges exorbitant legal costs to defendants has a chilling effect on freedom of expression. Third party organisations included English PEN, Global Witness, Human Rights Watch, Index on Censorship, Media Legal Defence Initiative and Open Society Justice Initiative.
- Pauliukienè and Pauliukas v. Lituania (2009 submission): The applicants in this case had sued a Lithuanian newspaper for writing that Pauliukas, the head of a municipal agency, and his wife had violated building regulations. Third party interveners advised the court that Article 8 of the European Convention, regarding right to reputation, should not override Article 10, regarding the public’s right to information and to freedom of expression. Furthermore, representatives of the Open Society Justice Initiative, the Media Legal Defence Initiative and the Romanian Helsinki Committee argued that as a public figure Pauliukas should be expected to tolerate a higher degree of media criticism.
- Sanoma Uitgevers B.V. v. the Netherlands (2009 submission): A number of IFEX members expressed serious concern over the decision reached by the ECHR in this case. Sanoma Uitgevers B.V. is a media company that was forced to hand over photographs of a potential robbery suspect to the police. The media house challenged the Dutch law that does not require a prosecutor to obtain authorisation from an independent judicial body before seizing materials from the media. The ECHR ruled that the case did not violate Article 10; this decision has been appealed to the Grand Chamber, which has agreed to hear the case.
- Mosley v. United Kingdom (2010 submission): A number of media and rights organisations, including Index on Censorship and the Media Legal Defence Initiative, intervened in Formula 1 celebrity Max Mosley’s petition to the ECHR to rule on a “prior notification” law. Mosley claims the law would protect the right to privacy as media would be forced to contact those they write about before an article is published, thus giving the individual time to file an injunction to stop publication of the article.
In very rare cases, representatives of the Court may travel to a state to clarify the facts of a case to determine if human rights abuses have occurred. The delegation can interview witnesses, experts, government officials, and many others during such a mission.
Pilot cases
When a large number of applications come from individuals that concern a systemic human rights issue in a particular state (for example, the arbitrary cancellation of media house licenses), the Court may lump these cases together and call on general measures to be taken that would address all of the individual cases, such as reforming domestic legislation.
Organisations can complement the work of this Committee by providing information and evidence when a state fails to comply with the remedies ordered by the Court. Representatives of organisations should lobby members of the Committee to take measures against states that fail to comply with the Court’s orders. To find out about upcoming meetings in which the Committee will discuss progress made on ECHR judgments and respond to failures in implementation, visit the following Council of Europe webpage: http://www.coe.int/execution. Schedules that list the cases the Committee will be discussing can be found under ‘CM-DH’. To follow the Committee’s supervision of how countries are implementing ECHR decisions, click on ‘states of execution’ (cases are categorized by country).
At the same time, however, Index on Censorship noted in 2009 that the Court as of late has been prioritising the protection of privacy and the reputation of individuals over the interests of free expression. A few years ago, for example, the Court upheld a France court’s decision that a writer had defamed conservative French politician Jean-Marie Le Pen for calling him a hate monger. (Le Pen has made many controversial statements, including that HIV-infected people should be subjected to forced isolation). The Court has also refused to intervene in the UK’s notoriously anti-free expression libel laws, including its provision that the defendant in libel cases must prove him or herself innocent, rather than putting the burden of proof on claimants to show statements are indeed false. Click here to read Index on Censorship’s analysis on a recent ECHR decision that failed to rule against a contentious UK libel law that considers an article to be “published” every time it is viewed by an online reader. While, traditionally, those suing for libel must do so within one year of publication, the British law’s interpretation of an internet publication can extend the statute of limitations indefinitely.
http://www.echr.coe.int
The Convention for the Protection of Human Rights and Fundamental Freedoms (with additional protocols):
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_Conven.pdf
Questions and answers for applicants to the ECHR:
http://www.echr.coe.int/NR/rdonlyres/37C26BF0-EE46-437E-B810-EA900D18D49B/0/ENG_QR.pdf
Searchable database of judgements made by the ECHR (searches can be narrowed by article under question, date, country, and other areas): http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
Front Line Defenders Manual on the ECHR:
http://www.frontlinedefenders.org/manual/en/echr_m.htm
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