To kick off this series, I am providing some general background information on the European Convention of Human Rights, the Court and some legal principles that are necessary to be aware of to understand the rest of the series. These legal principles are straightforward and will help those of you with no legal background. They are frequently mentioned in court judgments and will help with understanding court reasoning.
The convention entered into force in 1953. There are currently 14 Protocols to the ECHR, each of which must be individually ratified in the Contracting States to be binding. Protocol 15 has not yet entered into force. The Convention is legally binding upon Contracting States who have signed and ratified the convention into national law. The Convention is binding on Contracting States only. You cannot enforce rights under the Convention against fellow private individuals, only against the State. The Convention is only enforceable against Contracting States. Third nations are not bound by the Convention and cases will not be heard by the European Court of Human Rights (ECtHR).
The Convention, for those that have ratified it, is legally binding in international law. The rights within are protected at both national courts and by the ECtHR (this will be discussed further late on). The Convention is not unique in its conception but has had greater success than any other “Human Rights Treaty” to date. The Convention is operational in a significant number of countries, 47 Contracting States is a large number for international cooperation. The presence of the ECtHR may be the reason behind the Convention’s success.
The ECtHR sits in Strasbourg in a number of various organisational structures. The Court can sit as a single judge, a committee of 3 judges, a chamber of 7 judges and a Grand Chamber of 17 judges. There are a total of 47 judges, one from each Contracting State. The Court issues legally binding judgments, meaning that the judgments have to be enforced in the Contracting State concerned. The Court can issue damages, though it usually is not a large amount. The Council of Europe monitors implementation of judgments in Contracting States.
There are a number of admissibility criteria to fulfill before a case can be brought before the ECtHR. There are two types of complaints mechanism: Article 33 individual complaints mechanism (brought by an individual against a Contracting State) and Article 34 inter-State Complaints Procedure (Brought by one contracting State against another Contracting State). Admissibility criteria are found in Article 35 and are as follows:
- The case must be brought within six months of the alleged violation taking place. This is strictly adhered to. There is an exception where the State may waive the rule and allow for the case to proceed or the alleged violation is continuing (the initial violation happened longer than six months previous but is continuing up to that point).
- An individual must have exhausted all forms of domestic remedies. There is an exception to this where domestic remedies are inadequate or ineffective. The onus is on the individual to prove that had they gone through the motions of the domestic court system, they would not have succeeded because national authorities are dismissive etc.
- The application cannot be made anonymously.
- The application cannot be “manifestly ill founded”. This means the court can dismiss applications where the case is not based on facts, truth or reliable evidence.
- The Case must not have been heard by the Court previously.
- The applicant must not be abusing his or her right to petition.
- The applicant must have suffered a “significant disadvantage” as a result of the breach.
- the application must be compatible with the ECHR. There are a number of incompatibility factors; the right falls outside the scope of the ECHR (such as the right to health care), the alleged violation occurred prior to the ratification of the ECHR by the Contracting State, the violation occurred outside the jurisdiction of the Contracting State, the applicant was not a “victim” of the violation, and the State is not a Contracting Party to the Convention.
Here are a number of key definitions often referred to by the court.
Margin of Appreciation: The margin of appreciation originally was only relevant to freedom of expression and privacy cases but has crept its way into almost every right under the convention. It basically means that where there is some sort of grey area, the Court will refrain from taking an official position and allow for the Contracting State to decide the legitimacy of the alleged right. This is the case for areas such as the right to life of the unborn, access to experimental medicine and assisted suicide.
Ratification: the Contracting State must ratify the Convention into national law, failing to do so will render the Convention non-binding.
Victim: the applicant must be a victim of the alleged violation. This means that the applicant must have been directly affected by the acts of the Contracting State. In cases of Torture or the Right to life, the applicant may be a close family member or closely related in some way, to the victim of the violation. For example in situations where the victim is on life-support, the parents or spouse of the victim may bring a case before the Court.
Significant Disadvantage: the victim must suffer a significant disadvantage. This means that the victim must have suffered a relatively substantial loss as a result of the alleged violation. A small loss will render the process disproportionate. Whether or not this is the correct approach is of academic debate, but in practice, is applied by the Court.
Principle of Proportionality: was the violation caused by an attempt to safeguard a more important right? The judges decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the cost.
Principle of Subsidiarity: Implementation rests primarily with Contracting States. The States choose the implementation method, for example in Ireland the Convention is ratified through the European Convention on Human Rights Act 2003.
Part Two available here.