European Fundamental Rights Law Literature Notes – Week 2 – The ECHR: Current Issues
Bernadette Rainey, Elizabeth Wicks, and Clare Ovey, Jacobs, White & Ovey, The European
Convention on Human Rights (Oxford: OUP, 2017), 3-64
1 Context, Background, and Institutions
Context
Within the United Nations, a catalogue of human rights and fundamental freedoms was established in
the Universal Declaration of Human Rights. The rights protected in the European Convention draw
their inspiration from the Universal Declaration, but do not simply duplicate the rights referred to
there. There were two concerns which led to the Convention. First was avoiding the reoccurrence of
the human rights violations of the Second World War and second was to protect states from
Communist subversion.
The Structure and Aims of the Council of Europe
The International Committee of Movement for European Unity, and its Congress at The Hague in 1948
were the foundation of the Council of Europe established in 1949 and the drafting by its contracting
parties of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The
Council operates through three organs. The decision-making body is the Committee of Ministers,
composed of the foreign ministers of the Contracting Parties, who for most meetings operate through
their deputies, each country’s ambassador to Strasbourg. The deliberative body is the Parliamentary
Assembly, composed of 318 representatives form the national parliaments, which may make
recommendations to the Committee of Ministers. The third organ was added in 1994 and is the
Congress of Local and Regional Authorities of Europe, which has consultative functions and is
composed of representatives of local and regional authorities. The work of these organs is supported
by a Secretariat, headed by the Secretary-General appointed by the Parliamentary Assembly on the
recommendation of the Committee of Ministers. The Council of Europe today consists of forty-seven
countries and five observer states.
The Content of the European Convention
Human rights can be defined in terms of generations. The first generation rights are civil and political
rights, second generation rights are social and cultural rights, and third generation rights concern
people collectively (development, peace, environment). The ECHR guarantees mostly civil and political
rights, though Articles 1 (property) and 2 (education) of the First Protocol are exceptions to this.
However, not every Contracting Party has ratified every provision of every protocol to the Convention.
Although the provisions of the Convention and its Protocols may seem to be statements of basic
human rights, they nevertheless present some issues which are controversial within certain
Contracting Parties – e.g. the UK has not ratified a number of protocols on migration rights.
The System of Protection
o The ‘Old’ System of Protection
The Convention created two organs ‘to ensure the observance of the engagement
undertaken by the High Contracting Parties’: the European Commission of Human Rights and
the European Court of Human Rights, whose main functions it was to deal with the
applications made by States and by individuals alleging violations of the Conventions. Where
the respondent state had ratified Protocol 9, the applicant could refer the matter to the
Court, but it had first to be submitted to a panel of three judges who could decided whether
the matter was a serious question concerning the interpretation of the Convention.
o The ‘New’ System of Protection
Protocol 11 amended the Convention to make provision for a new wholly judicial system of
determination of applications. The Commission and the Court were replaced from 1
November 1998 by a new Permanent Court, which handles both the admissibility and merits
phases of application. Enlargement and increasing work load led to another amendment in
2000, the result of which was Protocol 14. This made important changes to the system for
filtering application by introducing a single-judge formation to examine admissibility and a
three-judge committee dealing with ‘repetitive’ cases.
, The Role of the Secretary-General of the Council of Europe
The Secretary-General is the senior official of the Council of Europe, elected for a period of five years
by the Parliamentary Assembly from a list of candidates drawn up by the Committee of Ministers. He
is the depository for ratifications of the Convention and has an important monitoring function under
Article 52.
The Commissioner for Human Rights
The Commissioner for Human Rights is an office established by resolution of the Committee of
Ministers and is charged with promoting education, and awareness of, human rights in the territories
of the Contracting Parties.
The Relationship with Other International Courts and Tribunals
Multiple referrals can happen in relation to the circumstances involved in individual applications, but
can be most striking in relation to inter-state cases. It can generally be said that the International
Court of Justice and the Strasbourg Court take account of each other’s case-law in determining such
questions, but nevertheless the risk of diverging interpretation remains. Next, concerning the EU, the
Convention is not formally binding on the Union, but its provisions can and must be given effect as
general principles of Union law. It is now the position that the Luxembourg Court will review measures
of the institutions for their compatibility with fundamental rights protected by the European
Convention. It can call to account the conduct of Member States where they are directly implementing
Union provisions. The EU was supposed to accede to the Convention but the 2013 draft agreement
was struck down by the Luxembourg Court, as it found that this would undermine the Luxembourg
Court and the autonomy of EU law. Last, the Lisbon Treaty gives legal status to the EU’s Charter of
Fundamental Rights, which was adopted at the 2000 Nice Council. The rights are said to be based on
the rights guaranteed by the ECHR, but in some cases there are significant differences in wording. Its
scope is considerably wider than the rights under the ECHR.
2 Proceedings Before the Court
Composition and General Procedure
o Election of Judges
The Strasbourg Court consists of a number of judges equal to the number of Contracting
Parties to the Convention. The judges are selected by the Parliamentary Assembly from a list
of three candidates nominated by each state.
o Committees, Sections, Chambers, and Grand Chambers
Under Article 27, as amended by Protocol 14, the Court may sit in several configurations:
The single-judge formations are competent only to declare applications inadmissible;
The three-judge Committee may examine admissibility and the merits of repetitive cases;
The seven-judge Chambers examine the admissibility and merits both of individual
applications, which are not prima facie inadmissible, and of inter-state cases;
The Grand Chamber of seventeen judges may, under Article 30, rule on matters that raise
serious questions affecting the interpretation of the Convention or Protocols, or where it
appears that the Chamber is likely to reach a decision which would be inconsistent with
earlier case-law, provided that the Chamber relinquishes this to it.
o Presidency
The Court has a President and two Vice-Presidents, and each Section has a President elected
by the plenary Court for three years.
Examination of Admissibility: Procedural Issues
o Single-Judge Formation and Committee Procedure
The admissibility criteria are set out in Article 35 of the Convention. Given the large number
of applications, all applicants which appear to be manifestly inadmissible are referred to a
single-judge formation. An application may be referred to a Committee of three judges by the
judge rapporteur or by the single-judge formation.
o Chamber Procedure
Applications which are not dealt with by a single-judge formation or a Committee are
