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Escalate It | Chapter Sixteen

Guide to the European Court of Human Rights


INTRODUCTION

The European Court of Human Rights (ECHR) has made more than 10,000 judgments since it was established in 1959 to uphold the European Convention on Human Rights and Fundamental Freedoms. Any individual victim of a human rights violation, family member(s) of victims or group of victims can submit a case to the ECHR. 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 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. Each of its 47 judges - one from every state that has signed on to the Convention - serves a nine-year term. Each state nominates three candidates, and the judges are selected by the Parliamentary Assembly of the Council of Europe. Judges make decisions based on their legal and human rights expertise and are not to be influenced by state interests.


PROTECTING FREE EXPRESSION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The international European Convention entered into force in 1953. All 47 state parties must promote and defend the rights guaranteed in the Convention, which include freedom of expression. Article 10 of the Convention reads:

(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.

Furthermore, 14 protocols have been adopted to clarify the protections and freedoms of the Convention and defend additional rights. Read the original convention, as well as the additional protocols.


SUBMITTING APPLICATIONS TO THE ECHR

Who can submit to the ECHR?

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 of the right to life, and does not rule on them as FOE violations.

Non-government human rights organisations that have faced state repression can appeal to the court as victims.

Those submitting cases do not need be nationals of any of the states under the Court's jurisdiction. While legal representation is not required to submit a case, it is recommended to ensure an application is properly formulated and articulated.

Applications

Submit cases using application forms on the ECHR's website. The ECHR is currently running a pilot program allowing applicants using Swedish or Dutch to submit applications online. If successful, the trial program will be expanded. Submit an online application in Swedish or Dutch here. All other applicants should submit in writing to:

European Court of Human Rights
Council of Europe
67075 Strasbourg Cedex
France

Applications must…

Briefly summarise the facts.

  • Specify the Convention right(s) the complainant believes have been violated.
  • Explain the remedies attempted, with copies of the results (such as decisions in domestic courts). Keep in mind that no documents will be returned so only copies should be sent.
  • Include real names. Applicants who wish to remain anonymous must include their real names on the application form, indicating their wish to be anonymous and an explanation 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.
  • Be written in English, French or an official language of one of the states that have ratified the Convention.

Admissibility criteria

Applications must demonstrate the following 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 it 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. In cases where domestic remedies have proven ineffective, it is not necessary for applicants to launch appeals 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 human rights violation(s) that the application concerns; family to a victim is considered a direct victim in cases of violation of the right to life.

5. The application must be lodged against a state that has ratified the Convention before the violation took place. See which states have ratified the Convention. A 'P' indicates the state has ratified the protocol.

6. 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 or 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. The first case was 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.

OUTLINE OF THE ECHR PROCESS

STEP 1:

Court decides admissible vs. inadmissible

Every application received by the Court is reviewed and deemed admissible (approved for further deliberation) or inadmissible (the case is thrown out). If the Court declares a case inadmissible, the decision is final; an applicant may resubmit if further evidence comes to light. Admissibility decisions must contain reasons, be made public and cannot be made by a judge from the country in which the case concerns. To be admissible, an application must satisfy several technical and legal requirements (see previous section).

STEP 2:

Parties present evidence

If a case is admissible, the Court considers the case on its merits. The Court notifies the government of the state concerned, 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; the Court may provide legal aid.

STEP 3:

Court oversees a settlement or orders protection

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) in the meantime. Interim measures are most often applied when individuals face deportation or extradition.

STEP 4:

Handling “repetitive” cases

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 based on a case’s merits and the well-established case law of the Court. The committee decisions are final.

STEP 5:

Court orders remedy or public hearing

Other cases are considered by one of five seven-member Chambers. 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 get a public hearing.

STEP 6:

In massive violations, the Grand Chamber steps in

In cases of massive or egregious human rights violations, cases are automatically referred to a 17-judge Chamber, which includes the Court’s president, vice-president and all the presidents of the chambers, plus 10 rotating judges. The Chambers decide cases by a majority vote.

STEP 7:

Making an appeal

Either party in a case that has been heard by a seven-member Chamber may request an appeal to the Grand Chamber within three months after the judgment. 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. In very rare cases, Chambers may also relinquish cases to the Grand Chamber when it involves an especially complicated interpretation of the Convention. The Grand Chamber judgment is always final, however applicants may resubmit a case if it contains fresh evidence.

A note on timing and reforms

Due to a backlog of more than 100,000 cases, the Court 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, though more reforms are necessary. In late 2009, 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. Get more info on the joint statement by civil society groups.

Member states of the Council of Europe came up with an Action Plan 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. Read more about the Interlaken Declaration that came out of this conference.


OTHER OPTIONS UNDER THE ECHR

Option 1: Third-party intervention

Experts, representatives of human rights organisations and others can gain permission from the Court to intervene in the proceedings by filing pleadings and/or 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. Such intervention ensures the proper administration of justice; therefore third party interveners should conduct themselves in a bias-free manner. Third party submissions often provide additional context or legal interpretation for the case, such as the human rights repercussions of a law or legal decision.

Taking action:

Individuals or organisations wishing to intervene 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 briefly describe its operations and credentials and state the issues it 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.

Cases against a state are added to the ECHR web page.

Examples of statements made to the ECHR by third-party intervener organisations.


Examples_ECHR.pdf (76 KB)

Option 2: Fact-finding missions

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. During such a mission the delegation can interview witnesses, experts, government officials, and many others.

Option 3: Pilot cases

When a large number of individual applications hint at 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.


FOLLOWING A JUDGMENT

The Committee of Ministers of the Council of Europe monitors the execution of judgments. The foreign affairs ministers who compose the Committee can put political and economic pressure on noncompliant governments. In addition, with the new Protocol 14 amendments, the Committee can refer cases back to the Court when countries fail to follow through with recommendations. If the Court agrees that a state is refusing to implement a judgment, the Committee can take further action. In theory, this further action could see the Committee suspending or expelling a state from the Council of Europe.

Organisations can complement the work of this Committee by providing information and evidence and by lobbying Committee members when a state fails to comply with the remedies ordered by the Court. 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 Council of Europe webpage. Look under CM-DH to see schedules listing the cases the Committee will be discussing. To follow the Committee's supervision of how countries are implementing ECHR decisions, click on 'states of execution' (cases are categorised by country).


THE COURT’S RECORD ON PROTECTING FREEDOM OF EXPRESSION

Court judgments have both championed and delivered blows to freedom of expression. A few examples of rulings that upheld the right to free expression:

In a 1976 ruling, the court noted that freedom of expression was applicable to favourably received information or ideas and also those that “offend, shock or disturb the State or any sector of the population.”

In May 2010, the head of a French magazine that had run a cover story on terrorist groups won damages when the Court ruled that the defamation conviction against the magazine was in violation of Article 10 of the Convention.

In an especially significant ruling, the Court ruled that the editor-in-chief of Gundelik Azerbaijan and Realniy Azerbaijan newspapers is unlawfully imprisoned and should be immediately released and awarded 27,822 euros in compensation. The Court ruled that the case against editor Eynulla Fatullayev, who has been jailed for the past three years, is politically motivated.

At the same time, Index on Censorship noted in 2009 that the Court has been putting privacy and the reputation of individuals over the interests of free expression:

A few years ago, 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 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. 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.

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