European Court of Human Rights
Description
The European Court of Human Rights (Court) is an institution of the ECHR. Articles 19 to 51 of the ECHR define the Court’s mandate, composition, jurisdiction and powers. This discussion will now examine the main procedural provisions. Under Article 21(2), the Court’s judges are independent, and sit “in their individual capacity”. In keeping with the provisions of Article 21(3), the forty-seven judges from the CE’s member states should not engage in any activities deemed “incompatible with their independence [and] impartiality”. The independence of the Court’s registry from the CE is assured under Article 25, allowing it to decide its own functions. Article 32(1) provides for the Court’s independent jurisdiction, which allows it the necessary latitude to interpret and apply the Convention, in a manner it deems necessary. Under Article 34, the Court can accept petitions from individuals, or from third parties representing the victim, while Article 33 provides for interstate petitions by the CE’s forty-seven member states. The finality of the Court’s judgments is assured under Article 42. This Article should be read in conjunction with Articles 44 on the binding nature of the Court’s judgments, and Article 46 on the CM’s role in supervising the execution of the Court’s judgments by the member states.
The following provisions from the ECHR facilitate the continued mutual interdependence between the CE, and the Court. Article 47(1) establishes the CM’s right to request an advisory opinion from the Court “on legal questions concerning the interpretation of the ECHR and the protocols thereto”, but provided that these “shall not deal with any questions relating to the scope of the rights or freedoms defined in Section I of the ECHR and the protocols thereto” (Article 47(2)). The financial arrangements between the Court and the CE are detailed under Article 50, which states, “the expenditure on the Court shall be borne by the [CE]”. Finally, enquiries by the CE’s Secretary General to member states are permitted under Article 52, in which the Secretariat can request, “any High Contracting Party [to] furnish an explanation of the manner in which its internal law shall ensure the effective implementation of any other provisions of the [ECHR]”.
Democracy through rights and the European Court of Human Rights
As the Fundamental Principles highlight, democratic participation in the CE gives “effect to freedom of association, guaranteed by the [ECHR] and safeguarded by international and constitutional law”. This was also recognised by the Strasbourg Court’s ruling in the case of Gorzelik and Others v. Poland: “the right to freedom of association laid down in Article 11 incorporates the right to form an association. The ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning”. This provides a useful starting point from which to examine the supranationality of the Strasbourg Court, and its contribution to the CE’s democratisation.
The supranationality of the Strasbourg Court is evidenced by its importance as the most effective institution within the CE framework. It contributes towards ensuring that member states uphold Convention rights, and sanctions them when they do not. Additionally, although Article 47(1) allows for the CM to request an advisory opinion from the Court as to the interpretation of the Convention, Article 47(2) does not allow for it to request advisory opinions in respect to Convention rights. This caveat is important in that it restricts member states’ national sovereignty from encroaching on rights protection.
However, the Court does not enforce its own decisions. Under Article 46 of the ECHR, the CM is responsible for monitoring member state compliance. Additionally, the use of its case law by national courts is not compulsory. It is open to states to incorporate not only the Convention in national law, but the entire case law of the Strasbourg institutions as binding authority as well. However, most seem to regard the Strasbourg case law as of only ‘persuasive’ authority, probably in order to avoid limiting the scope of national courts to interpret the Convention to meet national requirements.
Nonetheless, the Court’s contribution to facilitating democratic participation and democratic control within the CE framework is two-fold. Under Article 22, the Assembly elects the Court’s judges. In turn, although most cases are put forward by individual applicants, Article 34 allows for cases to be put forward by NGOs. In this sense, being a victim does not mean having been directly harmed by the violation of a Convention right. However, Article 35(3)(b) of the Convention as amended by Protocol 14, now prohibits the admissibility of applications if “the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”. Whilst this is intended to reduce the Court’s workload by restricting speculative applications, it also inhibits applications being made by third parties such as NGOs, which might be indicative of systematic compliance problems in member states than those brought by aggrieved victims or their next of kin acting on their initiative.