Why was the Council of Europe set up in 1949?
- Nazism and dictatorships throughout the1930s and 1940s and desire to prevent a similar repeat.
- Remaining influence of Soviet Union in central and eastern Europe. Idea was to promote western values of protecting human rights, promoting democracy and promoting the rule of law. These core values remain today.
What limbs of the Council of Europe are there?
- Committee of ministers - contains ministers from each MS, e.g. foreign ministers or their ambassadors. They attend representing the interests of their relevant state.
- Parliamentary assembly - around 400 parliamentarians drawn from each of the member states. Not elected but intended to represent respective populations and are appointed by national parliaments.
What was the original system of Strasbourg enforcement?
The pre-1998 system. It was complex and involved a number of different organisations. There was no direct access to the ECtHR. Most decisions were determined by the CoM (a political body).
What enforcement system operated from 1998 - 2010?
Protocol 11.
One single court that undertook all of the work that the committee and commission had operated. The court was made full time (previous two bodies part-time). The committee of ministers had no power of decision making in cases. Direct access to the court became available.
How are individual complaints dealt with?
Since 2010 they have been dealt with though Protocol 14.
There are 3 channels.
Registration is undertaken by support staff, (mostly lawyers) who decide whether a case is clearly inadmissible. A case sent down this route will appear before a single judge supported by a ‘legal rapporteur’ from the registry, and the judge has final say on the case. In 2018, 33,181 cases where determined via this route, often more.
In the central route, the judge rapporteur is a judge of the SC. They have 2 routes available to them, and must decide if the case is not inadmissible but still raises no new legal issues, or whether the case is novel/complex. The committee is a judicial body containing 3 Strasbourg judges who see purely written submissions. They can divert the case to the admissibility route or declare its admissibility if they are unanimous. If they are not, the case must go to a chamber of 7 judges. In 2018 the committee dealt with 2000 applicants through 337 judgments. Efficient.
What type of case is brought under A.33 and what system is used to address it?
Inter-state cases are brought under A.33.
Protocol 11 applies to all IS cases.
How many Inter-state cases are pending and what normally happens in such cases?
8 IS cases are currently pending. they are seen by a 7 judge Chamber under protocol 11 but A.30 allows control to be relinquished to the Grand Chamber of 17 judges and historically all cases have gone down this route due to their complexity.
Under what article are individual complaints brought?
A.34
How has A.34 been interpreted?
- Any person - interpreted very broadly. Under certain articles (e.g. A.10) non-humans are acceptable, but under others, e.g. A.3 you could not have torture of a corporate entity.
- Group of individuals - those with similar interests e.g. journalists under A.10.
- Victim of a violation - must be shown by all claimants, which is problematic for NGOs as the SC interprets ‘victim’ strictly, so the NGO must ether suffer itself (rare), or find a human victim and support them.
What must be shown before an individual or IS application can be brought?
A.35 admissibility criteria must be satisfied. It is strictly applied.
How has A.35 been interpreted?
- After all domestic remedies have been exhausted - this includes a final denial of leave. 2 reasons: principle of subsidiarity; it is primarily the responsibility of the state to provide redress, and secondly, practically there wouldbe too many cases if 800 million had direct access to the court.
- Within a period of 6 months - very strictly applied. Soon to be reduced to 4 months following Protocol 15. All documents and application form must be provided.
- A. 35(2) - further criteria only applicable to individual cases. 90% will fail.
- The same as a matter already examined - same applicant or same circumstances.
- ‘Incompatible with the provisions of the Convention - applicant asserting a right not protected by the ECHR.
- Manifestly ill-founded - e.g. insufficient evidence for the factual basis of the allegation.
- Not suffered a significant disadvantage - Added by Protocol 14, designed to catch minor convention breaches/technical breaches not serious enough to be dealt with by the court. Ionescu v Romania - no reclining seat on 90 Euro coach. Argued breach of A.6. Held no significant disadvantage.
- A 35(4) - a catch all - abusive applications/dishonest applicants.
What are the stages of proceedings?
Admissibility Merits/fact-finding (Friendly settlement) Judgment (Just satisfaction) (Referral to GC) Supervision of execution
Explain each possible stage of proceedings up to judgment and remedy given as a result.
- Admissibility - strong filter, only 10% through. If case does get through then 80% chance a breach will be found.
- Merits/fact finding - normally, the SC will take the facts established by the national court in the course of hearing full argument. At the same time as assessing the merits of the case, the SC will seek a friendly settlement:
- Friendly Settlement (A.39) (FS negotiations are confidential, the state may be encouraged by lawyers to pursue it because the case has already been found admissible, and because the FS route does not result in judgment being made against the state. The individual may be inclined to pursue FS because of the uncertainty of litigation. Any FS must be approved by the court from the perspective of human rights. In 2018 there was a 43% increase in friendly settlements).
- Judgment - If a FS is not reached, the court will give judgment. There can be dissenting judgments in the SC. If the applicant asks for A.41 Just Satisfaction the court must examine this:
- Just satisfaction (A.41) - the primary remedy. Three types of financial payment: pecuniary (financial value of property damaged), non-pecuniary (compensation for non-financial loss e.g. torture), legal costs (not restricted to legal costs in Strasbourg alone. Commonly states will dispute amount proposed. Mowbray comments that the courts seem more interested in establishing breaches rather than dishing out financial compensation, which often is not substantial.
Explain each possible stage of proceedings after a remedy is given.
- Referral to Grand Chamber (A.43) – this is the last potential stage in a case. It is known as a rehearing but is essentially an appeal. Most applications are rejected by the GC, but where they are allowed the GC will hear the whole case again with all legal argument before 17 judges. This makes these decisions the most significant of the ECtHR and in 2018 there were only 14.
Once a case has been resolved either by a committee, chamber or grand chamber, the role of the Strasbourg Court ends and the role of the committee of ministers begins:
- Supervision of execution (A.46) – under A.46 the CoM is responsible for ensuring the enforcement of judgments, essentially by exerting political pressure on states. It can take years to achieve compliance. Serious measures such as suspension of exclusion from the CoE can be administered but these have never been used. If the CoM cannot achieve compliance it can refer back to the SC for a ruling to affirm that the MS has not complied. The outcome of one of these referrals made against Azerbaijan at the end of 2017 is currently awaited.
What are the challenges facing the court?
- Interlaken Declaration (February 2010) – president of the SC questioned whether MSs were still committed. All 47 MSs declared their commitment publicly.
- Izmir Declaration (April 2011) – reaffirms commitments made in the Interlaken declaration but noted with concern the continuing rise in the number of applications made to the court and its growing workload despite the introduction of protocol 14.
- Brighton Declaration (April 2012) – British Government sought to limit the powers of the SC by attempting to persuade other MSs to modify the convention, introducing subsidiarity and margin of appreciation doctrines to the convention text. The MSs compromised by amending the preamble of the convention to include these doctrines and this was intended to be added by protocol 15.
What is proposed by Protocol 15?
Provides that shortlisted judges from member states should be under 65. Where they are they can have a 9 year term and stay in office beyond the age of 70. It also intends to reduce the time limit for bringing a case to 4 months rather than 6. Bosnia and Italy are yet to ratify this protocol and so it is not yet in effect due to lacking unanimity.
What is proposed by protocol 16?
An optional protocol allowing the referral of questions from the highest national appellate court in member states to the ECtHR for an opinion. This is intended to promote dialogue. It is thought that it would increase the SC’s workload in the short term but decrease it in the long term. 10 states have ratified this protocol but large states such as the UK and Germany have pledged not to.
What general issues for the CoE are there?
There is a backlog of complex cases pending before the courts. There are structural problems in member states that cause continuous breaches (e.g. overcrowded prisons in Romania). Lastly, Russian voting rights were suspended following the annexation of Crimea and Russia has ceased membership payments and threatens to leave.
How many judges are in the court?
Article 20 - 47 judges representing the 47 state parties.
What is the criteria for office for judges?
A 21 - (1) High moral character. This is not defined, perhaps to allow broad consideration of actions from the past e.g. demonstrating values contrary to the convention. (2) Have qualifications required to high judicial office or be jurisconsults of recognised competence. Qualifications are those needed to be a senior judge in ones own country, e.g. a solicitor of barrister for 10 years in the UK. A jurisconsult is a broadly eminent practitioner or a senior academic.
How are judges elected?
Responsibility is shared. Each MS must nominate 3 candidates that satisfy A.21(1). The Parliamentary assembly of the CoE then chooses one candidate, following an interview by the committee of the PA. Extra info - advisory panel set up by CoM in secret which gives an opinion to state on the suitability of candidates.
What are the weaknesses of the process of judicial election?
There are no treaty obligations on how to select the 3 candidates put forward by each MS, which risks MSs choosing candidates that reflect their own interests. The PA encourages an open and transparent selection process, independent from the Government. Not all MSs comply with this and some rejected this change in P14.
What do some people feel about the demographic of the court and how has this been addressed?
From the early 2000s there was a growing view that women were underreprested in the SC, so PA decided that 40% of the SC should be female and refused to consider all-male shortlists until this threshold was met. In 2008, Malta had an open and transparent selection process and submitted an all-male shortlist. The Maltese government argued that those were the 3 best candidates. SC held that policy not allowed since gender not mentioned as a criterion. The PA compromised, allowing consideration of all-male shortlists in exceptional circumstances. Currently 15/47 judges female.
Elaborate on the terms of office and dismissal of judges.
A 23. Judges elected for 9 years with no extensions which removes incentive for bias. (Formerly 9 years renewable then 6 years after Protocol 11).
Protocol 11 introduced the termination of judges’ terms at age 70 (reacting to full-time changes brought in by P11). The limtation is critised by judges hence the proposed changes in Protocol 15.
