3.7 The growth of the ECHR
The achievements of the ECHR are many. It continues to promote human rights and democracy across Europe, it has established jurisprudence in human rights and it has made significant contributions to the continued peace and stability of Europe. Recent reforms mean that the right of individual petition is now guaranteed, so individuals are afforded protection from the power of the state. The number of HCPs has expanded to 47 and access to the protection of the ECHR and the ECtHR is available to over 800 million European citizens.
Whilst this expansion has been welcomed, it has also been rapid. The number of new member states that joined in the 1990s was nineteen followed by a further four in 2000. The size of the Council of Europe has effectively doubled in the last twenty years. This expansion has brought challenges, particularly for the ECtHR. Paul Mahoney, a former Registrar to the Court, has commented that:
the main task of the Council of Europe and its Court has changed from one of fine-tuning well-established and well-functioning democracies, to that of working to consolidate democracy and the rule of law in new and relatively fragile democracies.
Table 3 illustrates how the number of applications lodged with the ECtHR increases each year.
|Number of applications
As the number of new applications grows so does the backlog of cases: in 2004 there were 44,100 new applications with the total number of cases pending 82,100 (future projections see this figure rising to 250,000 by 2010). An analysis of the cases pending by member states reveals that the rise in the number of applications is partly due to the enlargement of the Council of Europe after 1990 when countries of the former Soviet Bloc acceded to the ECHR.
|% of cases pending at October 2004
Box 3: The European Court of Human Rights
The European Court of Human Rights is an international court based in Strasbourg. It consists of a number of judges equal to the number of member states of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court's judges sit in their individual capacity and do not represent any state. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers from all the member states (who are also known as legal secretaries). They are entirely independent of their country of origin and do not represent either applicants or states.
The Court applies the European Convention on Human Rights. Its task is to ensure that states respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as applications) lodged by individuals or, sometimes, by states. Where it finds that a member state has violated one or more of these rights and guarantees, the Court delivers a judgment. Judgments are binding: the countries concerned are under an obligation to comply with them.
An individual may lodge an application with the Court if they consider that they have personally and directly been the victim of a violation of the rights and guarantees set out in the Convention or its Protocols. The violation must have been committed by one of the states bound by the Convention.
The following conditions apply to an application:
The individual does not need to be a national of one of the States bound by the Convention. The violation they are complaining of must simply have been committed by one of those States within its ‘jurisdiction’ which usually means within its territory;
The applicant can be a private individual or a legal entity such as a company or association;
They must have directly and personally been the victim of the violation they are alleging. They cannot make a general complaint about a law or a measure, for example, because it seems unfair; nor can they complain on behalf of other people (unless they are clearly identified and the applicant is their official representative).
Procedural conditions also apply:
An applicant must have used all the remedies in the state concerned that might have been able to redress the situation they are complaining about (usually, this will mean an application to the appropriate court, followed by an appeal, where applicable, and even a further appeal to a higher court such as the Supreme Court or Constitutional Court, if there is one);.
It is not enough merely to make use of these remedies. In so doing, the applicant must also have actually raised their complaints (that is, the substance of the Convention violations they are alleging);.
An applicant has only six months from the date of the final decision at domestic level (generally speaking, the judgment of the highest court) to lodge an application. After that period the application cannot be accepted by the Court.
Against whom can an application be lodged?
An application can be lodged against one or more of the states bound by the Convention which, in the applicant's opinion, has/have (through one or more acts or omissions directly affecting them) violated the European Convention on Human Rights. The act or omission complained of must have been by one or more public authorities in the state(s) concerned (for example, a court or an administrative authority).
The Court cannot deal with complaints against individuals or private institutions, such as commercial companies.
What can an application be about?
An application must relate to one of the rights set out in the European Convention on Human Rights. Alleged violations may cover a wide range of issues, such as: torture and ill-treatment of prisoners; lawfulness of detention; shortcomings in civil or criminal trials; discrimination in the exercise of a Convention right; parental rights; respect for private life, family life, the home and correspondence; restrictions on expressing an opinion or on imparting or receiving information; freedom to take part in an assembly or demonstration; expulsion and extradition; confiscation of property; and expropriation.
An applicant cannot complain of a violation of any legal instrument other than the European Convention on Human Rights. The Court will not hear matters relating to, for example, the Universal Declaration of Human Rights or the Charter of Fundamental Rights.
How does an applicant apply to the Court?
By sending a letter to the Court giving clear details of the complaint (in which case they will receive an application form which must be filled out) or by filling out an application form directly. The letter and/or the application form should be sent to the Registrar of the European Court of Human Rights. An applicant may write in one of the Court's official languages (English and French) or in an official language of one of the states that have ratified the Convention.
The application must contain:
a brief summary of the facts and complaints;.
an indication of the Convention rights alleged to have been violated;.
the remedies already used;.
copies of the decisions given in the applicant's case by all the public authorities concerned;.
What are the main features of the proceedings?
Proceedings are conducted in writing. Public hearings are exceptional. Cases are dealt with free of charge.
Although an applicant does not need to be represented by a lawyer in the first stages of the proceedings, they will need a lawyer once their application has been notified to the Government. The great majority of applications are, however, declared inadmissible without being notified to the Government.
What are the main stages in the process?
The Court must first examine whether an application is admissible. This means that the case must comply with certain requirements set out in the Convention. If the conditions are not satisfied, the application will be rejected. If several complaints have been made, the Court may declare one or more of them admissible and dismiss the others.
If an application or one of the complaints is declared inadmissible, that decision is final and cannot be reversed.
If an application or one of the complaints is declared admissible, the Court will encourage the parties (the applicant and the state concerned) to reach a friendly settlement. If no settlement is reached, the Court will consider the application ‘on the merits’ – that is, it will determine whether or not there has been a violation of the Convention.
How long may the process take?
In view of the current backlog of cases, an applicant may have to wait a year before the Court can proceed with its initial examination of an application. Some applications may be treated as urgent and dealt with as a matter of priority, particularly where the applicant is said to be in imminent physical danger.
What can an applicant obtain?
If the Court finds that there has been a violation, it may award ‘just satisfaction’, a sum of money in compensation for certain forms of damage. The Court may also require the state concerned to refund the expenses an applicant has incurred in presenting their case. If the Court finds that there has been no violation, an applicant will not have to pay any additional costs (such as those incurred by the respondent state).
The Court is not empowered to overrule national decisions or annul national laws;.
The Court is not responsible for the execution of its judgments. As soon as it has given judgment, responsibility passes to the Committee of Ministers of the Council of Europe, which has the task of supervising execution and ensuring that any compensation is paid;.
The Court does not act as a court of appeal vis-Á-vis national courts; it does not rehear cases, it cannot quash, vary or revise their decision;
(Source: based on FAQs at the ECtHR website accessed 17 January 2008)
This reflects the current procedure before ECtHR. Proposals for change are being made due to the increasing number of applications and the time taken to process them. The backlog of cases is of growing concern: in 2004, four per cent of applications has been pending for more than five years. This falls below the standards set by the ECtHR for the length of proceedings.
Protocol 14, adopted in May 2004, is designed to improve the efficiency of the Court and ensure its effectiveness. As the information in Box 3 above illustrates, applications are currently allocated, via one of the Court's sections, to a committee of three judges (for disposal of inadmissible cases) or to a chamber of seven judges (for consideration of borderline cases). The proposals under Protocol 14 would mean that:
a single judge would reject cases where they are clearly inadmissible from the outset
a committee of three judges could give judgments in repetitive cases where case law is already well established
a new admissibility criteria would be introduced in cases where the applicant has not suffered a ‘significant disadvantage’ and their case has been duly considered by a domestic tribunal, provided there are no general human rights reasons why the application should be examined on its merits.
A review of the working of the ECtHR has been undertaken and discussion as to the shape of future reform are ongoing. Lord Woolf has commented that ‘The problems of the Court derive not only from the rapid increase in the number of member states and the number of citizens able to apply to Strasbourg. It has also undergone a more fundamental change in its nature and purpose’ (Woolf, 2005).
The first President of the Court, Luzius Wildhaber, has highlighted the contrast between the Convention system's original purpose as an early warning system, and its current role, whereby it is ‘increasingly thought of as being required to offer everyone the individual protection of the law in the last instance’. Although the Court continues to deal with serious human rights questions, this work is now only a fraction of its day-to-day work. 85 per cent of incoming cases are not examined on their merits (either because they are declared inadmissible, or because they are not pursued and are therefore disposed of administratively), and of the admissible applications, only a fraction raise serious human rights questions.
The high percentage of inadmissible cases suggests a lack of congruence between the expectations of those who apply to the Court, and what the Court can actually deliver. There is, in short, a lack of awareness and understanding as to the Court's real purpose and jurisdiction. Reform of the Court may therefore not be enough: thought may also need to be given to how the expectations of 800 million citizens may be achieved.