COM 01/2020

Regional Systems of Human Rights Protection: Europe

 2. The European Court of Human Rights

Structure and Procedure

The European Court of Human Rights (ECtHR), seated in Strasbourg, was founded in 1959 and reformed in 1998.[1] It is not to be confused with the highest court of the European Union, the European Court of Justice (CJEU) in Luxembourg. The ECtHR is composed of a number of judges equal to that of the contracting states (Art. 20 ECHR). The judges are delegated by the member states and must be elected by the Parliamentary Assembly of the Council of Europe (Art. 22 ECHR). However, since the judges are independent and do not represent their states, there is no restriction on the number of judges of the same nationality.[2]

The ECtHR has jurisdiction to interpret and enforce the provisions of the ECHR (Art. 32 ECHR). It may be appealed to, when fundamental rights and human rights listed in the Convention have been violated by one of its member states. It does not act ex officio. Thus, its jurisdiction refers to complaints filed either by states parties against other treaty states (state complaints, Art. 33 ECHR) or by individuals as well as non-governmental organizations (individual complaints, Art. 34 ECHR) against states parties, claiming to be a victim of infringements by an act of the state, including the acts of all state organs, such as public authorities or courts. In the case of individual complaints, however, it is required that the national legal process is exhausted.[3]

Despite this prerequisite, the workload of ECtHR is enormous. At the beginning of 2019, more than 57,000 proceedings were pending.[4] In 2018, 43,100 new applications were received. On the other hand, 42,761 decisions were made (of which only a fraction, 2738, was admissible).[5] In view of these statistics, it goes without saying that incoming applications will only be decided after a certain time and that complainants will have to prepare themselves for lengthy proceedings.

Since the ECHR is not regarded as a fixed set of rules, but as a “living dynamic instrument which […] must be interpreted in the light of present-day conditions,”[6] the Court’s interpretations are crucial. The judgment of the ECtHR, whether a state has violated the rights of the ECHR, and if so it has to pay damages to the person concerned, is legally binding for the state that is brought before the court (Art. 46 para. 1 ECHR). The ECtHR is not an appellate court and national judgments are not immediately set aside or amended. Hence, the sentenced state has to implement the obligations resulting from the judgment actively in order to avoid further violations against other persons. The Committee of Ministers of the Council of Europe monitors the execution of the judgments (Art. 46 para. 2-5 ECHR).[7]The ECtHR workload problems are mirrored in the enforcement process. Only a small percentage of cases can actually be processed. There is also the problem that the ECHR does not provide for effective sanction mechanisms. If a member state refuses to implement the ECtHR’s ruling, the only coercive measures that could be considered are the suspension of voting rights in the Committee of Ministers or exclusion from the CoE. Both means, however, would be counterproductive, as they would lead to further alienation between de state concerned and the CoE.[8]

Member states that are not subject to the particular litigation are not directly obliged to abide by the judgments. Nevertheless, if the national courts and authorities of a state do not take the case law of the ECtHR into account and deviate from its legal interpretation, the preliminary effect of the decisions of the ECtHR makes it probable that this state will be sentenced in similar cases. Accordingly, the judgements of the ECtHR are of an indicative nature, as they often lead to changes in national legislation.[9] However, due to different cultural and moral understandings in the states of Europe the ECtHR generally concedes every member states a wide margin of appreciation on the implementation of its judgments, as long as the standard of fundamental freedoms set by the ECtHR is not reduced or limited.[10]

The ECtHR for instance, sees differences between the contracting states of the ECHR regarding their view in terms of the beginning of life under criminal law, the admissibility of abortion, assisted suicide, the access of homosexual couples to marriage and adoption, and the affixing of religious symbols in classrooms.[11]

Judgements

The most violated ECHR provision is Art. 6 (right to fair trial), especially since it guarantees a right to a judicial decision within a „reasonable time.“[12] According to ECtHR case law, the length of the “reasonable” period always depends on the individual case and is determined by various criteria, such as the complexity of the case, the conduct of the applicant and the competent authorities, the personal consequences of the decision for the applicant, etc.[13] The ECtHR has often found that the time period to be determined according to these criteria has been exceeded in domestic court proceedings. The fact that the ECtHR is repeatedly passing judgement against the same states in similar situations shows that, in practice, judgments are not always implemented by the member states in accordance with their obligations.

Some of the ECtHR landmark cases are:

 Opuz v. Turkey (Judgement of 9 June 2009):

The ECtHR found a violation of the prohibition of discrimination against women, the right to life, and the prohibition of torture and degrading treatment. The Court ruled that the Turkish authorities had failed to take appropriate measures within the scope of their powers to protect the applicant and her mother against domestic violence used by her father. The Court states a “general and discriminatory judicial passivity in Turkey [that] created a climate that was conducive to domestic violence.”[14]

 Soering v. United Kingdom (Judgement of 7 July 1989):

The ECtHR hold that a violation of the prohibition of torture and degrading treatment is to be seen in the extradition of the applicant to a state where he is threatened with the death penalty, because of the conditions of detention on death row. The applicant is a German national who was to be extradited to the State of Virginia, USA, where he was charged with murdering his girlfriend’s parents. The case is crucial because the Court included the behavior of a state that is not subject to the ECHR in its decision.[15]

 Bayatyan v. Armenia (7 July 2011):

The Court ruled a violation of the freedom of thought, conscience, and religion concerning the imprisonment of a conscientious objector – a Jehovah’s Witness – for his refusal to perform military service. [16]

Burdov v. Russia (7 May 2002, 4 May 2009):

In its Judgement in 2002 the ECtHR found violations of the right to a fair trial and the protection of property, because the decisions of domestic courts granting the applicant various social benefits were not carried out fully or on time.[17]After years of apparent lack of decisive improvements, the ECtHR again decided in favor of the complainant in a follow-up case in 2009 stating: “The Court notes at the outset that non-enforcement or delayed enforcement of domestic judgments constitutes a recurrent problem in Russia that has led to numerous violations of the Convention.”[18]

Schwabe and M.G. v. Germany (1 December 2011):

The applicants had been arrested and kept in prison for five days in order to prevent their participation in demonstrations related to the Group of Eight Summit of Heads of State and Government held in Germany in 2007. One day before, there had been heavy riots during which violent demonstrators had attacked police officers with stones and baseball bats and injured 400 officials. The police assumed without sufficient indication that the complainants could participate in further riots. Since the ECHR provides for preventive detention only for the purpose of arraignment or for the prevention of a crime which is specifically and precisely defined, the Court found a violation of the right to liberty and security and the freedom of assembly and association.[19]

Nagla v. Latvia (16 July 2013):

The ECtHR ruled a violation of the freedom of expression after the police had searched the home of a journalist and confiscated data storage devices. The Court hold that the right of journalists not to disclose their sources is not dependent on the lawfulness of their sources, but an essential element of the right to information.[20]

 D.H. et al. v. Czech Republic (13 November 2007):

The ECtHR hold that children of Roma descent (ethnic minority in Europe) face systematic discrimination in the Czech Republic and sees the prohibition of discrimination and the right to education to be violated. The applicants were placed into “special schools” for children with mental disabilities as of over half of Roma children in der town.[21]

3.Human Rights in the European Union

European Union

As of early 2019, the European Union is a supranational economic and political union of 28 European countries.[22]The predecessor of the EU, die European Economic Community (EEC), was created in the aftermath of the Second World War as a result of the 1957 Treaty of Rome in order to foster economic cooperation between the six founding states Belgium, West-Germany, France, Italy, Luxembourg, and the Netherlands. In the following decades, more and more European states joined the single market.[23]

In 1992, the Treaty of Maastricht gave more powers in non-economic policy areas and renamed the EEC into the European Union (EU). The Treaty of Maastricht also created a reference to human rights, stating that: “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law” (Art. F para. 2).[24]

To become a member of the European Union, a candidate country must comply with a number of conditions. In addition to the so-called political criterion – which conforms to the Council of Europe’s membership requirement – the state must fulfill economic criteria and be able to take on the obligations of membership and the objectives of political, economic, and monetary union (adoption of the so-called “acquis communautaire.”)[25]

Several reform treaties, most recently the Treaty of Lisbon (2007), amended the original treaties of Rome and Maastricht and extended the supranational competences of the EU.[26] These treaties form together the central legal source of European law, so-called primary law of the EU.[27]

The European Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union (CFR) comprises 54 Articles divided into seven chapters. The first chapter (Dignity) covers the right to life and integrity to the person, and it prohibits torture and slavery. The second chapter (Freedoms) guarantees, for example, liberty and security, privacy, the freedom of expression and information, and the freedom of assembly and association. Furthermore, it codifies the right to property, the freedom to choose an occupation and to conduct business, and the right to asylum. The third title (Equality) covers equality before the law and prohibits all forms of discrimination. The fourth title (Solidarity) refers to single aspects of social rights, such as family and working conditions. Furthermore, it lays down social security and assistance as well as health care. The fifth chapter (Citizen’s Rights) enshrines, e.g., the right to vote and the freedom of movement and residence. The sixth chapter (Justice) guarantees the right to an effective remedy, a fair trial, the presumption of innocence, etc. Last but not least, the seventh title contains general provisions on the interpretation and application of the Charter.[28]  The Charter is based on the ECHR, the European Social Charter, the case law of the European Court of Justice and European Union law.[29]

The CFR was proclaimed in 2000. Until the Treaty of Lisbon, the legal status of the CFR was, however, undetermined.[30] Coming into force on 1 December 2009, the Treaty of Lisbon determined the Charter as primary source for human rights in the law of the European Union, stating that: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union […] which shall have the same legal value as the Treaties.”[31] Accordingly, the CFR is part of the EU’s primary law and is thus to be found at the top of the hierarchy of norms within the EU. Pursuant to Art. 51 CFR, the Charter, on the one hand, is binding for the EU and its institutions. All the EU’s action must be benchmarked against the Charter, in particular European legislation (regulations and directives) and European administration. On the other hand, every EU member state is obliged by the Charter if and when it carries out EU law, for example, by integrating European directives into national law or by implementing European regulations through national administrations. The Charter does not apply to purely national situations without a European dimension. The national fundamental rights of the member states are the sole yardstick for this assessment. However, the Charter always serves as an aid to interpretation not only for EU law but also for national law.[32]

The Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) has jurisdiction to interpret EU law, such as the Charter.[33] In contrast, the CJEU can neither interpret national norms, nor can it apply them against EU law.[34] Violations of fundamental rights can be litigated before the CJEU by EU institutions against each other, by member states against each other, and by the Commission[35] or Individuals against member states or EU institutions.[36] However, the access to the CJEU for individuals is limited. In pursuance of Art. 263 Treaty on the Functioning of the European Union (which is an updated form of the Treaty of Rome) individuals can only call the CJEU if they are direct addressees of or directly affected by EU acts. Since addressees of EU acts are usually the member states themselves, the scope of Art. 263 is essentially limited to the examination of, for example, measures of EU competition law. Mostly, the CJEU gets involved via preliminary reference procedure, Art. 267 Treaty on the Functioning of the European Union. This procedure allows (and obliges) national courts to make a reference application to the CJEU in matters relating to European law as part of the domestic procedure.

Subsequently, the CJEU states its opinion on the matter, giving a general interpretation of the EU law concerned, and sends it back to the national court. As a result, not only the court that has made the reference application has to follow the CJEU’s interpretation, but every other court on EU territory has to take this into account when it decides in similar cases. In this way, jurisprudence in the EU will be harmonized.[37]

Relationship of the EU Human Rights Protection and the ECHR

Although planned for a long time, the EU as such has not joined the European Convention on Human Rights. Consequently, the EU is not directly bound by the ECHR and EU law is not subject to any direct control by the European Court of Justice as to its compatibility with the ECHR.

In its Opinion 2/94[38], the European Court of Justice (CJEU) stated that the European Union lacks the competence to accede to the ECHR. The 2007 Treaty of Lisbon therefore expressly provides for a legal basis and declares the EU’s accession to the European Convention of Human rights as binding legal aim (cf. Art. 6 para 2 Treaty on European Union). Accordingly, the EU and the CoE negotiated an agreement that the EU and its institutions, including the CJEU, would be subject to the external control mechanisms of the ECHR and in particular to the decisions and judgments of the ECtHR. Although the Commission was sure that the agreement was compatible with the EU Treaties, it asked the CJEU for its opinion on the matter for reasons of principle. On 18 December 2014 the CJEU stated that it considers the accession agreement to be incompatible with EU law. It sees the special characteristics of the Union and Union law as affected by the failure to ensure consistency between the provisions of the ECHR and the CFR. As the opinion of the CJEU is negative, the accession of the EU has moved into the distant future.[39] However, this does not relieve the EU member states, which are altogether subject to the ECHR, of their responsibility to ensure that the rights of the Convention are respected. The accession of the EU to the ECHR is therefore of limited practical significance.[40]

Art. 6 para. 3 of the Treaty on European Union codifies: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member states, shall constitute general principles of the Union’s law.” Thus, the ECHR remains a formal source of EU human rights law, guaranteeing a minimum standard of human rights. The CFR is more comprehensive than the ECHR but they overlap in many ways. Art. 52 para 3 of the CFR states: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

This clarifies that the ECHR and its interpretation by the ECtHR is a source of legal knowledge for the acquisition of general legal principles of EU law. Accordingly, the case law of the ECtHR is of great importance, also for the jurisdiction of the CJEU.[41]

The ECHR and CFR do not constitute competing legal orders on EU territory, but a multi-layered human rights protection system.[42]

Legal Process in Case of Human Rights Violations by Member States of the Coe/EU: