Subject – Criminal Justice system and Human

Rights

Topic of assignment – European Court of Human Rights

Submitted by – Submitted to –

Prachi Singh Dr. Archana Singh

LL.M. – 2nd semester Assistant Professor

University Roll Number – 2110013215017 Faculty of Law

Class roll no. 19 University of Lucknow

 INDEX

Sr. Content Page

No. No.
1 Acknowledgement 3

2 Introduction 4

3 History 5

4 Member states 7

5 Jurisdiction 8

6 Effectiveness 9

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 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Dr. Vinita

Kachar, who gave me the golden opportunity to do this wonderful and
innovative assignment regarding European Court of Human Rights. She also
helped me with the study materials for completing my assignment. I came to
know about many case laws on the point and hence I am really thankful to you
Ma’am.

Secondly, I would like to thank my parents and friends who helped me a lot in
finalizing this project within the given time.

Prachi Singh

LL.M. 1st Semester

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 INTRODUCTION
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg
Court,1 is an international court of the Council of Europe which interprets the European
Convention on Human Rights. The court hears applications alleging that a contracting state has
breached one or more of the human rights enumerated in the Convention or its optional
protocols to which a member state is a party. The European Convention on Human Rights is
also referred to by the initials "ECHR". The court is based in Strasbourg, France.

An application can be lodged by an individual, a group of individuals, or one or more of the

other contracting states. Aside from judgments, the court can also issue advisory opinions. The
convention was adopted within the context of the Council of Europe, and all of its 46 member
states are contracting parties to the convention. Russia, having been expelled from the Council
of Europe as of 16 March 2022,2 ceases to be a party to the convention with effect from 16
September 2022 in accordance with article 58. Until then, the court has declared it "remains
competent to deal with applications directed against the Russian Federation in relation to acts
or omissions" occurring until that date.3 The court's primary means of judicial interpretation is
the living instrument doctrine, meaning that the Convention is interpreted in light of present-
day conditions.

International law scholars consider the ECtHR to be the most effective international human
rights court in the world.4 Nevertheless, the court has faced challenges with verdicts not
implemented by the contracting parties, as well as balancing caseload management with access.

On 10 December 1948, the United Nations adopted the Universal Declaration of Human
Rights which aims to promote the universal recognition of rights set out therein, in order to
strengthen the protection of human rights at the international level.
While hugely important in setting a global standard for the first time, the declaration was
essentially aspirational, and had no judicial enforcement mechanism. A year later, the twelve
member states of the newly-created Council of Europe began work on the European
Convention on Human Rights, drawing inspiration from the rights already set out in the
Declaration, but with the crucial difference that - for the European countries which chose to
sign up to it - there would be a judicial mechanism to ensure that they respected the basic rights
of their citizens.
The court was established on 21 January 1959 on the basis of Article 19 of the European
Convention on Human Rights when its first members were elected by the Parliamentary

1
Anagnostou, Dia (30 April 2013). European Court of Human Rights: Implementing Strasbourg's Judgments on
Domestic Policy. Edinburgh University Press. p. 27. ISBN 978-0-7486-7058-1.
2
"The Russian Federation is excluded from the Council of Europe" (Press release). Strasbourg: Council of
Europe. 16 March 2022
3
Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the
Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights
4
von Staden, Andreas (2018). Strategies of Compliance with the European Court of Human Rights: Rational
Choice Within Normative Constraints. University of Pennsylvania Press. p. 1

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Assembly of the Council of Europe. Initially, access to the court was restricted by the European
Commission of Human Rights, abolished in 1998.5 The court kept a low profile during its first
years and did not accumulate much case law, first finding a violation in Neumeister v
Austria (1968).6 The convention charges the court with ensuring the observance of the
engagement undertaken by the contracting states in relation to the convention and its protocols,
that is ensuring the enforcement and implementation of the European Convention in the
member states of the Council of Europe.

History
The year 1959 has seen the creation in Europe of a new international court of justice which, to
judge by the quality of its members, is to none in the world and whose activities in the future
may have found effect on the development of international law. This is the European Court of
Human Rights, provided for in the European Convention for the Protection of Human Rights
and Fundamental Freedoms signed in Rome on the 4th November, 1950.7 The convention was
prepared by the Committee of Ministers of the Council of Europe, on the proposal of the
Consultative Assembly8 and entered into force on 3rd September, 1953, when it had been
ratified by ten Member States.9 Five others have ratified subsequently,10 so that all Members
of the Council of Europe are now Parties, with the exception of France: By the terms of the
Convention, the Contracting Parties guarantee to all persons within their jurisdiction a number
of rights and freedoms, including: the right to life; the right to liberty and security of the person;
freedom from torture, slavery, and servitude; freedom from arbitrary arrest, detention, or exile;
the right to a fair trial; freedom from arbitrary interference in private and family life, home,
and correspondence; freedom of thought, conscience, and religion; freedom of opinion and
expression; freedom of assembly and of association; freedom to join trade unions; the right to
marry and found a family. These rights and freedoms were taken from the Universal
Declaration of Human Rights adopted by the General Assembly of the United Nations on 10th
December, 1948, though they are defined in much greater detail. Moreover, they form in the
European Convention the object of precise legal obligations, by contrast with the Universal
Declaration, which was a solemn statement of intentions-of considerable moral value but
without legal effect. By the conclusion of a Protocol on 22nd March, 1952, three additional
rights were added: the right of property, the right of parents to choose the education to be given
to their children, and the right to free elections.11

5
6
Neumeister v Austria, Judgment on Merits, App no 1936/63 (A/8), [1968] ECHR 1, IHRL 2 (ECHR 1968), 27th
June 1968, European Court of Human Rights [ECHR]
7
European Treaty Series, No. 5. The text may also be found in European Yearbook, Vol. I (1955) 317-341.
8
see A. H. Robertson, "The European Convention on Human Rights," British Yearbook of International Law
(1950) 145-163.
9
United Kingdom, Norway, Sweden, Federal Republic of Germany, the Saar, Ireland, Greece, Denmark, Iceland,
and Luxembourg (in the order of deposit of the instru- ments of ratification
10
Turkey (May 1954), Netherlands (August 1954), Belgium (June 1955), Italy (Octo- ber 1955), and Austria
(September 1958
11
A. H. Robertson: "The European Convention on Human Rights-Recent Devel- opments," British Yearbook of
International Law (1951) 359-365

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In order to ensure respect for the provisions of the Convention, it was decided to set up
machinery for its enforcement, before which the Parties could be called to order if they failed
to fulfil their obligations. First of all, there was created the European Commission of Human
Rights, consisting of a number of members equal to that of the High Contracting Parties, to
which, under Article 24 of the Convention, any Party may refer an alleged breach of the
Convention by any other Party. This is the classic type of inter-State action, whereby one
government may bring a complaint against another government for failure to fulfil its
obligations under international law. In addition to this, however, there is also a right of
individual petition. Under Article 25, the Com- mission may receive petitions from "any
person, non-governmental organization or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set forth in this Convention." This
jurisdiction of the Commission is however subject to two conditions: that the Party against
which the complaint is made has declared that it recognizes the right of individual petition and
that at least five other States have made similar declarations. In fact, nine out of the fifteen
Members of the Council of Europe have recognized the competence of the Commission to
receive individual petitions,12 and this remedy is now available to about 90 million Europeans.
A condition of its exercise is the previous exhaustion of local remedies; many individual
applications have been rejected for noncompliance with this rule. Another frequent reason for
inadmissibility is that the facts complained of occurred before the entry into force of the
Convention. Important cases which have been examined by the Commission are those relating
to the legality of the German Communist Party, to the detention without trial of an alleged
member of the Irish Republican Army, and the two cases brought by Greece against the United
Kingdom in respect of the emergency measures in Cyprus.13

The function of the Commission, under Article 28, is "to secure a friendly settlement of the
matter on the basis of rights as defined in this Convention." If it fails to "to draw up a report on
the facts and state its opinion facts found disclose a breach by the State concerned under the
Convention." (Article 31). This report is to the Committee of Ministers of the Council of
Europe, required to decide by a two-thirds majority whether there has been a violation of the
Convention and, if so, what measures should be taken to remedy the situation. The Parties
undertake to regard as binding on them any such decision of the Committee of Ministers.
(Article 32). It will be apparent that the function of the Commission is essentially one of
conciliation. When it is dealing with a case brought by one state against another, it follows the
traditional method that has been long known to international law, with the important proviso,
however, that the machinery for conciliation is permanent. The major innovation represented
by the Commission is the right of individual petition to an international organ, which has only
been recognized on rare occasions in the past; in the first three years of its existence almost
400 individual applications were received,8 thus demonstrating clearly the importance of
admitting that the private citizen has a locus standi in international law. If the attempt at
conciliation fails, the procedure of drawing up a re- port which is sent to the Committee of

12
Austria, Belgium, Denmark, Federal Republic of Germany, Iceland, Ireland, Lux- embourg, Norway, and
Sweden
13
European Com- mission of Human Rights: Documents and Decisions, The Hague (1959)

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Ministers of the Council of Europe means that the issue is to be dealt with at the political level.
Under Article 14 of the Statute of the Council, the Committee of Ministers consists of the
ministers for foreign affairs of the member states; the Committee is therefore a political organ
which is likely to take decisions for political reasons. This may well be the most appropriate
procedure for certain types of case. On the other hand, the question whether a Contracting Party
has violated the provisions of the convention is more likely to be of a legal character, for
determination by a judicial authority. It was for this purpose that the convention provided for
the creation of the European Court of Human Rights, which is the subject of this article.

Member States
The jurisdiction of the court has been recognized to date by all 46 member states of the Council
of Europe. On 1 November 1998, the court became a full-time institution and the European
Commission of Human Rights, which used to decide on admissibility of applications, was
abolished by Protocol 11.

The accession of new states to the European Convention on Human Rights following the fall
of the Berlin Wall in 1989 led to a sharp increase in applications filed in the court. The
efficiency of the court was threatened seriously by the large accumulation of pending
applications.

In 1999, 8,400 applications were allocated to be heard. In 2003, 27,200 cases were filed and
the number pending rose to approximately 65,000. In 2005, the court opened 45,500 case files.
In 2009, 57,200 applications were allocated, with 119,300 pending. At the time, more than 90
per cent of applications were declared to be inadmissible, and the majority of cases decided—
around 60 per cent of the decisions by the court—related to what is termed repetitive cases:
where the court has already delivered judgment finding a violation of the European Convention
on Human Rights or where well established case law exists on a similar case.

Protocol 11 was designed to deal with the backlog of pending cases by establishing the court
and its judges as a full-time institution, by simplifying the procedure and reducing the length
of proceedings. However, as the workload of the court continued to increase, the contracting
states agreed that further reforms were necessary and in May 2004, the Council of Europe
Committee of Ministers adopted Protocol 14 to the European Convention on Human
Rights. Protocol 14 was drafted with the aim of reducing the workload of the court and that of
the Committee of Ministers of the Council of Europe, which supervises the execution of
judgments, so that the court could focus on cases that raise important human rights issues.

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 Jurisdiction
The court has jurisdiction amongst the member states of the Council of Europe which includes
almost every country in Europe except for Vatican City, Belarus and Russia. The jurisdiction
of the court is generally divided into inter-state cases, applications by individuals against
contracting states, and advisory opinions in accordance with Protocol No.2. Applications by
individuals constitute the majority of cases heard by the court. A committee is constituted by
three judges, chambers by seven judges, and a Grand Chamber by 17 judges.

Application by individual

Applications by individuals against contracting states, alleging that the state violated their
rights under the European Convention on Human Rights, can be made by any person, non-
governmental organisation, or group of individuals. Although the official languages of the
court are English and French, applications may be submitted in any one of the official
languages of the contracting states. An application has to be made in writing and signed by the
applicant or by the applicant's representative. [27]
Once registered with the court, the case is assigned to a Judge Rapporteur, who can make a
final decision on whether the case is inadmissible. A case may be inadmissible when it is
incompatible with the requirements of ratione materiae, ratione temporis or ratione personae,
or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of domestic
remedies, lapse of the six months from the last internal decision complained of, anonymity,
substantial identity with a matter already submitted to the court, or with another procedure of
international investigation.
If the Judge Rapporteur decides that the case can proceed, the case is then referred to a chamber
of the court which, unless it decides that the application is inadmissible, communicates the case
to the government of the state against which the application is made, asking the government to
present its observations on the case.
The chamber of the court then deliberates and judges the case on its admissibility and its merits.
Cases that raise serious questions of interpretation and application of the European Convention
on Human Rights, a serious issue of general importance, or which may depart from
previous case law can be heard in the Grand Chamber if all parties to the case agree to the
chamber of the court relinquishing jurisdiction to the Grand Chamber. A panel of five judges
decides whether the Grand Chamber accepts the referral.

Interstate cases
Any contracting state to the European Convention on Human Rights can sue another
contracting state in the court for alleged breaches of the convention, although in practice this
is very rare. As of 2021, five interstate cases have been decided by the court:

 Ireland v. United Kingdom (no. 5310/71), judgement of 18 January 1978 on inhuman

and degrading treatment in Northern Ireland (art. 3)
 Denmark v. Turkey (no. 34382/97), judgement of 5 April 2000 ratifying a friendly
settlement of 450,000 DKK regarding a Danish national detained in Turkey (art. 3)

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  Cyprus v. Turkey (IV) (no. 25781/94), judgements of 10 May 2001 on the treatment of
missing persons (art. 2, 3 and 5), the right of return of Greeks who have fled to the south
(art. 8, 13 and P1-1), the rights of Greeks still living in the north (art. 3, 8, 9, 10, 13,
P1-1, P1-2) and trial by military courts (art. 6). A subsequent judgement of 12 May
2014 awarded €90 million in 'just satisfaction' (art. 41)
 Georgia v. Russian Federation (I) (no. 13255/07), judgement of 3 July 2014 on the
collective expulsion of Georgians from Russia (art. 3, 5, 13, 38, P4-4) and Russia not
cooperating with the court (art. 38)
 Georgia v. Russian Federation (II) (no. 38263/08), judgement of 21 January 2021

Advisory opinion
The Committee of Ministers may, by majority vote, ask the court to deliver an advisory opinion
on the interpretation of the European Convention on Human Rights, unless the matter relates
to the content and scope of fundamental rights which the court has already considered.

Erga omnes effects

ECtHR rulings have erga omnes effects (that is, they are potentially binding on all member
states), because the court "determines issues on public-policy grounds in the common interest,
thereby extending human rights jurisprudence throughout the community of European
Convention States", although erga omnes effect "is not regarded by all States Parties as a legal
requirement".

Effectiveness
International law scholars consider the ECtHR to be the most effective international human
rights court in the world.14 According to Michael Goldhaber in A People's History of the
European Court of Human Rights, "Scholars invariably describe it with superlatives".15

The court lack enforcement powers. Some states have ignored ECtHR verdicts and continued
practices judged to be human rights violations. Although all damages must be paid to the
applicant within the time frame specified by the court (usually three months) or else will
accumulate interest, there is no formal deadline for any more complex compliance required by
the judgement. However, by leaving a judgement unimplemented for a long period of time,
brings into question the state's commitment to addressing human rights violations in a timely
fashion.

The number of non-implemented judgements rose from 2,624 in 2001 to 9,944 at the end of
2016, 48% of which had gone without implementation five years or more. In 2016, all but one
of the 47 member countries of the Council of Europe had not implemented at least one ECtHR
verdict in a timely fashion, although most non-implemented verdicts concern a few countries:
Italy (2,219), Russia (1,540), Turkey (1,342), and Ukraine (1,172). More than 3,200 non-
implemented judgements "concerned violations by security forces and poor detention
conditions". Council of Europe Commissioner for Human Rights, Nils Muižnieks, stated: "Our
work is based on cooperation and good faith. When you don't have that, it's very difficult to

14
European Journal of International Law. 19 (1): 125–159
15
Religion, State and Society. 45 (3–4): 166–173.

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have an impact. We kind of lack the tools to help countries that don't want to be
helped."[70] Russia systematically ignores ECtHR verdicts, paying compensation in most cases
but refusing to fix the problem, leading to a high number of repeat cases. Russian legislation
has set up a specific fund for paying the claimants in successful ECtHR verdicts.

Notable non-implemented judgements include:

 In Hirst v. United Kingdom (2005), and several subsequent cases, the court found that
a blanket deprivation of suffrage to British prisoners violated Article 3 of Protocol 1,
which guarantees the right to vote. A minimal compromise was implemented in 2017.
16

 The Constitution of Bosnia and Herzegovina was first ruled to be discriminatory in

2009 (Sejdić and Finci v. Bosnia and Herzegovina), for preventing Bosnian citizens
who were not of Bosniak, Croat, or Serb ethnicity from being elected to certain state
offices. As of December 2019, the discriminatory provisions have yet to be repealed or
amended, despite three subsequent cases confirming their incompatibility with the
ECHR.17
 In Alekseyev v. Russia (2010), the ban on Moscow Pride was judged to violate freedom
of assembly. In 2012, Russian courts banned the event for the next 100 years. The
ECtHR confirmed its ruling that bans on pride parades violate freedom of assembly
rights in Alekseyev and Others v. Russia (2018).18
 Bayev and Others v. Russia (2017), relating to the Russian gay propaganda law and
related laws, which the court judged to abridge freedom of speech.19
 Azerbaijani opposition politician Ilgar Mammadov, whose imprisonment the ECtHR
ruled illegal in 2014; he was still in jail in 2017. 20
 Following Burmych and Others v. Ukraine (2017), the ECtHR dismissed all 12,143
cases following the pattern of Ivanov v. Ukraine (2009) as well as any future cases
following that pattern, handing them to the Department of Execution at the Council of
Europe for enforcement. These cases all involved complainants not being paid money
they were due under Ukrainian law. In the eight years between Ivanov and Burmych,
Ukraine made no effort to resolve these cases, leading the ECtHR to "effectively [give]
up on trying to incentivize Ukraine to comply with its judgments". As of 2020, the
money owed to the complainants in these cases remains unpaid.

Another issue is delayed implementation of judgements. 21

16
Celiksoy, Ergul (2020). "Execution of the Judgments of the European Court of Human Rights in Prisoners'
Right to Vote Cases". Human Rights Law Review. 20 (3): 555–581
17
Milanovic, Marko (2010). "Sejdić & Finci v. Bosnia and Herzegovina". American Journal of International
Law. 104 (4): 636–641
18
Johnson, P. (2011). "Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the
European Court of Human Rights: Alekseyev v Russia". Human Rights Law Review. 11 (3): 578–593
19
Bartenev, Dmitri (2017). "LGBT rights in Russia and European human rights standards". Russia and the
European Court of Human Rights: The Strasbourg Effect. Cambridge University Press. pp. 326–352
20
Hervey, Ginger (20 September 2017). "Europe's human rights court struggles to lay down the law". POLITICO.
Retrieved 4 September 2020.
21
Szklanna, Agnieszka (2018). "Delays in the Implementation of ECtHR Judgments: The Example of Cases
Concerning Electoral Issues". European Yearbook on Human Rights 2018 (1 ed.). Intersentia. pp. 445–464.

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