Week 1 Flashcards
What is the aim of ECHR and where can it be found?
In the preamble of the ECHR, the aim is achieving greater unity between the members of the Council of Europe and the maintenance and further realization of HR and Fundamental freedoms.
What are the main organs of the ECtHR and what are their main competences?
One organ is the Committee of Ministers which is composed of the ministers of foreign affairs of the Contracting Parties. It is a decision making body meeting once a week and focuses on political dialogue, adopting recommendations, executing the Court’s judgments and interacting with the Parliamentary Assembly.
The Parliamentary Assembly is a deliberative organ composed of members of parliament and meets 4 times a year. It aims at dialogues between the Heads of States but cannot issue and binding decision.
How was the individual complain procedure before 1998 and how did it change?
Before 1998, the complaint procedure was different. The Contracting Parties had to petition the European Commission of HR to bring on a claim and had to accept the Court’s jurisdiction. Also, individuals could not access the court until 1994. After 1998, the Contracting Parties accepted the Court’s jurisdiction as mandatory and accepted a wholly judicial procedure with a full-time single court. Individuals also had a mandatory right to an application.
What is the composition of the Court?
The court shall sit in a single-judge formation, committees of 3, chambers of 7 and Grand chamber of 17 (Art. 26 ECHR). A single judge may declare a case inadmissible in accordance with Art. 27 EHCR, a Committee of 3 can unanimously rule on the admissibility of a complaint with the decision and judgment being final (Art. 28 ECHR). In accordance with Art. 29 ECHR, if the above do not take a decision, a Chamber of 7 may decide on the admissibility and merits of an application. If a case raises serious questions concerning the interpretation of the Convention, a Chamber may relinquish jurisdiction for the Grand Chamber (Art. 30). The Grand Chamber can determine applications, decide on issues of referral and give advisory opinions as per Art. 31 ECHR.
How is an application introduced?
Depending on whether the application is an inter-state one or an individual, the relevant rules are Rules 46,47 RoC and Arts. 33-4 ECHR. Hypothesizing that this concerns individual applications, an application form must be provided to the Registry with the information mentioned in Rule 47. Failure to comply with the requirements of paras. 1 and 2 of the latter article may result in the application not being examined by the Court (R47(4)).
Can the court establish facts or is it up to the national courts to do so?
Usually, it is up to the national courts to provide the facts of a case, but in case the national courts are deemed unable to do so for any apparent reason, Art. 38 ECHR allows the Court to examine a case and if need be undertake an effective investigation in which the CPs will assist as asked.
What are the conditions of admissibility where are they found? (for individuals)
Is the applicant a victim, Is a CP involved in a violation, does the complaint fall under the convention scope, are all domestic remedies exhausted, is the application made within the 6-month window, is the application anonymous, is it substantially the same as a previous application that was examined, is it ill-founded, does the applicant suffer a significant disadvantage? If all yes, then admissible.
What are the admissibility conditions for inter-state complaints?
1) Does the complaint fall under the scope of the convention?
2) Have all domestic remedies been exhausted by the individual?
3) Within the 6-month period?
What is a pilot-judgment procedure?
In accordance with Rule 61 RoC, a pilot-judgment procedure is taken when a systemic problem occurs giving rise to many similar applications. In this case, the Court uses one or more cases as a pilot case and all the other similar cases are frozen until the Court rules on the pilot case. By ruling on the pilot case, the Court keeps in mind that a judgment will also cover the rest of the cases. The purpose of this pilot-judgment procedure is for the Court to rule uniformly on similar cases and for speedier redress for the victims, as well as for removing a large number of repetitive cases.
What should be included in a judgment?
In accordance with rule 74 RoC, a judgment should have the contents as specified in the article.
What remedies can be pursued and under which article?
Art. 41 ECHR jo. Rule 61 RoC allow individuals to claim just satisfaction when the Court finds that there has been a violation of the Convention or the Protocols
How does the supervision and enforcement of judgments occur?
In accordance with Art. 36 ECHR, CPs must abide by the final judgment of the Court. The judgment is supervised by the CoM. If the CoM considers that a problem arises with the execution of the judgment due to an interpretation, it may refer the matter to the Court. If the CoM considers that the CPs do not abide by the final judgment, it may refer to the Court whether the CP has failed to fulfil its obligation under para 1. In case the Court does find a violation, It refers the case back to the CoM for measures to be taken.
What did the Court rule in Salah Sheekh?
In Salah Sheekh, the Court held that an applicant has not failed to exhaust all domestic remedies if he can prove that the available remedy was bound to fail.
What did court rule in Burdov?
A pilot procedure allows for uniformity of decisions by the court and provides speedier redress to the victims.
