HUMAN RIGHTS LAW. Ahmed T. Ghandour.

HUMAN RIGHTS IN EUROPE I.

1. THE EUROPEAN COMMISSION OF HUMAN RIGHTS.

THE ROLE OF THE COMMISSION.

 The Commission’s purposes were to investigate conflicts and to mediate friendly settlements.  Article 25 required that governments allow their own citizens to file complaints against them in the Council of Europe’s Human Rights Commission.  Both states and individuals could file applications: inter-state applications were allowed by article 24, which became article 33 under Protocol 11 in 1998; individual applications were allowed by article 25 (now article 34). The inter-state case mechanism has been used only rarely.  Complaints had to meet certain requirements in order to be considered. Article 27 of the original Convention (now article 35) indicates that the following kinds of complaints were inadmissible:

 Anonymous complaints;  Matters that had already been examined by the Commission or the court;  Those previously submitted to another international organization for investigation that contain no new information;  Those that had not exhausted all domestic remedies and had been filed six months after the last decision of the relevant domestic institution; and  Those “incompatible with the... Convention, manifestly ill-founded, or an abuse of the right of petition.”

 If a settlement was reached in a case, article 30 provided that the Commission would write a report consisting of a summary of the facts and a description of the settlement and send the report to the states involved, the Committee of Ministers, and the Secretary-General of the Council.  The case would then be removed from the list. If no settlement was reached, however, article 31(1) provided that the Commission write a report that included the opinion of the Commission on whether or not the Convention had been violated. The report was sent to the Committee of Ministers and the states involved in the dispute.  If neither party appealed the decision to the European Court of Human Rights within three months, article 32(1) provided that the Committee of Ministers decide whether or not there had been a violation.

2. THE COMMITTEE OF MINISTERS.

 The Committee of Ministers is the Council of Europe’s decision- making body. It comprises the foreign ministers of all member states, or their deputies, ( nowadays 47 state members).  It is both a governmental – political organ - body where national approaches to European problems are discussed on an equal footing and a forum to find collective responses to these challenges.  With the Parliamentary Assembly, it is the guardian of the Council’s fundamental values, and monitors member states’ compliance with their undertakings.  A judicial or quasi-judicial function were conferred according to Article 32 of the Convention. In a situation where a case was not referred to the court; then the Committee can deicide if a violation of human right had been occurred or not.  So the Committee can endorse the Commission report, or if there a violation it can address the state for a remedy but it has no power over the state.

 Today Article 32 had replaced by Protocol No. 11.  In accordance with Article 46 of the Convention as amended by Protocol No. 11, the Committee of Ministers supervises the execution of judgments of the European Court of Human Rights. This work is carried out mainly at four regular meetings (DH meetings) every year.  Documentation for these meetings takes the form of the Annotated Order of Business. The content of this document is made public, as are, in general, the decisions taken in each case.  The Committee of Ministers' essential function is to ensure that member states comply with the judgments and certain decisions of the European Court of Human Rights.  The Committee completes each case by adopting a final resolution. In some cases, interim resolutions may prove appropriate. Both kinds of Resolutions are public.  Applicants can access the Resolutions adopted concerning their case

THE EUROPEAN COURT OF HUMAN RIGHTS.

 Establishment of the Court  ARTICLE 19:  To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as “the Court”. It shall function on a permanent basis.

HISTORY OF THE COURT’S REFORMS  Since the Court opened in 1959, the member States of the Council of Europe have adopted a number of protocols to the European Convention on Human Rights with the aim of improving and strengthening its supervisory mechanism. In 1998 Protocol No. 11 thus replaced the original two-tier structure comprising the Court and the Commission on Human Rights, sitting a few days per month, by a single full-time Court. This change put an end to the Commission’s filtering function, enabling applicants to bring their cases directly before the Court.

A second major reform to address the considerable increase in the number of applications and the Court’s backlog was brought about by the entry into force of Protocol No. 14 in This Protocol introduced new judicial formations for the simplest cases and established a new admissibility criterion (existence of a “significant disadvantage” for the applicant); it also extended the judges’ term of office to 9 years (not renewable). Since 2010, four high-level conferences on the future of the Court have been convened to identify the means to guarantee the long-term effectiveness of the Convention system. These conferences have, in particular, led to the adoption of Protocols 15 and 16 to the Convention.

Protocol No. 15, adopted in 2013, inserts a reference to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble; it also reduces from 6 to 4 months the time within which an application must be lodged with the Court after a final national decision has also seen the adoption of Protocol No. 16, which will allow the highest domestic courts and tribunals to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. Protocol No. 16 is optional.

COMPOSITION OF THE COURT  According to Article 20 the number of judges; as mentioned:  The Court shall consist of a number of judges equal to that of the High Contracting Parties.  The judges are elected by the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each State. They are elected for a non- renewable term of nine years ( Article 22 & Protocol No.9).  Although judges are elected in respect of a State, they hear cases as individuals and do not represent that State. They are totally independent and cannot engage in any activity that would be incompatible with their duty of independence and impartiality.

 A Section is an administrative entity and a Chamber is a judicial formation of the Court within a given Section.  The Court has 5 Sections in which Chambers are formed. Each Section has a President, a Vice-President and a number of other judges. (Total 7 judges).  Ad hoc Judges  When the national judge does not sit in the case because of inability, withdrawal or exemption, an ad hoc judge is appointed by the President of the Court from a list submitted in advance by the government concerned.  Single Judges  Manifestly inadmissible applications are examined by a single judge formation.

CRITERIA FOR OFFICE.  1. The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be Juris consults of recognised competence.  2. The judges shall sit on the Court in their individual capacity.  3. 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 fulltime office; all questions arising from the application of this paragraph shall be decided by the court. (Article 21).

THE GRAND CHAMBER.  When does the Grand Chamber hear a case?  The initiation of proceedings before the Grand Chamber takes two different forms: referral and relinquishment.  After a Chamber judgment has been delivered, the parties may request referral of the case  to the Grand Chamber and such requests are accepted on an exceptional basis. A panel of judges of the Grand Chamber decides whether or not the case should be referred to the Grand Chamber for fresh consideration.  Cases are also sent to the Grand Chamber when relinquished by a Chamber, although this is also exceptional. The Chamber to which a case is assigned can relinquish it to the Grand Chamber if the case raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgment of the Court.

How are Chambers and Grand Chambers formed?  A Chamber is composed of the President of the Section to which the case was assigned, the “national judge” (the judge elected in respect of the State against which the application was lodged) and five other judges designated by the Section President in rotation.  The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots. (Total 17 judges).  When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.

 What are the main stages of the proceedings before the Court?  The Court must first examine whether the application is admissible. This means that the case must comply with certain requirements set out in the Convention. If the conditions are not satisfied, then application will be rejected. If a person has made several complaints,  the Court may declare one or more of them admissible and dismiss the others.  If the application or one of the complaints is declared inadmissible, that decision is final and cannot be reversed.  If the application or one of the complaints is declared admissible, the Court will encourage the parties (individual and the State concerned) to reach a friendly settlement.  If no settlement is reached, the Court will consider the application “on the merits” – that is, it will  determine whether or not there has been a violation of the Convention.

 How long do proceedings before the Court usually last?  It is impossible to indicate the length of proceedings before the Court.  The Court endeavours to deal with cases within three years after they are brought, but the examination of some cases can take longer and some can be processed more rapidly.  The length of the proceedings before the Court obviously varies depending on the case, the formation to which it is assigned, the diligence of the parties in providing the Court with information and many other factors, such as the holding of a hearing or referral to the Grand Chamber.  Some applications may be classified as urgent and handled on a priority basis, especially in  cases where the applicant is alleged to be facing an imminent threat of physical harm.

 Do judges sit in cases concerning their own country?  The composition of the bench always includes the “national judge”, whether it is a Chamber of 7 judges or a Grand Chamber of 17.  Can judgments be appealed against?  Even as inadmissibility decisions and Grand Chamber judgments are final and cannot be appealed against, the parties have three months following the delivery of a Chamber judgment to request referral of the case to the Grand Chamber for fresh consideration.  Requests for referral are examined by a panel of judges which decides whether or not referral is appropriate.  Does the Court hold public hearings?  The Court basically has a written procedure but occasionally decides to hold public hearings in specific cases. Hearings take place in the Human Rights Building in Strasbourg.  They are public unless otherwise decided by the President of the Chamber or Grand Chamber, as the case may be.

IMPORTANT TO KNOW!  Pages 135 – 159 just for reading.