European Court of Human Rights

2.2.1 Background:

To enforce the obligation from the ECHR three institutions were established: The Commission for Human Rights, the European Court of Human Rights and the Committee of Minister of the Council of Europe.⁶ If one of the Contracting States breached the ECHR, complaints were filed

6 The Committee were composed of the Ministers of Foreign Affairs of the member States or their representatives.

8 against them either by another Contracting State or by individual applications. Until Protocol No.11⁷ came into force in 1998, the recognition of the right of individual application was optional (CoE, n.d., p.4333).

All complaints were sent to the Commission and were subjected to a preliminary hearing. The Commission then decided whether a case was admissible. If the Commission found the case admissible, it was sent back to the parties to give them the opportunity to reach a friendly settlement. If the parties fail to come to an agreement, the Commission drew up a report with the merits of the case and sent it to the Committee of Ministers. When the case was sent to the Committee of Ministers, the parties had three months to bring their case before the ECtHR. It was only Contracting States that had the opportunity to bring their case before the Court. If the case was submitted by an individual or if the Contracting States did not bring the case before the Court, the Committee decided whether there had been a violation or not (CoE, n.d.).

When the ECtHR was established, it was a part-time court. The Court started out with sessions every three years. With the ever-growing number of cases brought before Court, the sessions became more frequent. The need for a full-time Court was imminent. In 1998 Protocol No.11 came in to force. With it, the Protocol brought big changes to the Court (CoE, n.d., Helland, 2012, s.37).

2.2.2 Changes in the European Court of Human Rights – Protocol No. 11 and No. 14

Protocol No. 11

When Protocol No. 11 came into force in 1998 it changed the entire structure of the ECtHR.

One of the biggest changes was that the ECtHR went from being a part-time Court to a full-time Court (ECHR, 1950, art.19).

As part of the structural changes that came with Protocol No. 11, the Commission was abolished, and the ECtHR took over their duties. Art.32 (1) gives the Court jurisdiction in “…

all matters concerning the interpretation and application of the Convention and the Protocols…”. Art.32 (2) states that if there are any disputes whether the Court has jurisdiction or not, the Court decides, meaning that the Court has the jurisdiction to deal with any allegations from any of the High Contracting Parties⁸ against another High Contracting Party. States that

7 See section 2.2.2 Changes in the European Court of Human Rights, Protocol No. 11, for further information.

8 “High Contracting Parties is the representatives of states that have signed or ratified a treaty” Oxford Reference (n.d.) High Contracting Parties.

9 are not a high contracting parties may not bring cases before the Court, not even if the accused State is a party of the Convention (ECHR, 1950, art.33, Helland, 2012, s.37-38).

Furthermore, individuals were now allowed to bring cases before court (ECHR, 1950, art.34).

Art.34 explicitly states that the High Contracting Parties is not to obstruct the exercise of this right in any way. However, there are some limitations to individuals’ rights to bring a case before the ECtHR. These limitations are described in art.35 of the ECHR. The idea behind art.35 of the Convention is that human rights should be protected on a national level, meaning that the individual should exhaust all national remedies before bringing their case to the ECtHR.

If the national court system fails to secure the applicants rights under the Convention, the ECtHR⁹ (ECHR, 1950, art.35, Helland, 2012, s.38-39). Any application submitted anonymously will not be accepted by the ECtHR. Nor will any cases where the matter in question already has been examined by the Court. However, if there are new circumstances that shed light on a previously examined case, the Court will look at the matter (Helland, 2012, s.39).

Lastly, art.46 of the ECHR (1950) states that “The Contracting Parties undertake to abide by the final judgement if the Court in any case to which they are parties.”. To ensure that the Contracting Parties uphold their obligation to the ECHR, the final judgement from the ECtHR are sent to the Committee of Ministers. The Committee then supervise the execution of the judgement (ECHR, 1950, art.46(2)).

Protocol No. 14

Protocol No. 11 helped speed up the processing of cases. In many ways the Protocol was successful in doing so. What no one could anticipate was the unprecedented rate cases submitted to the ECtHR grew at, the following decade after Protocol No. 11 came in to force (Myjer et al., 2010, s.55). It was evident that something needed to be done. The result was Protocol No. 14.

When Protocol No. 14 came in to force, in 2010, it was a new start for the ECtHR. The Protocol aimed to streamline how the ECtHR handled cases. In the work leading up to Protocol No. 14, it was clear that many of the cases submitted to the ECtHR were inadmissible. Other cases were in an area of already well-established case-law. Both of these cases were speedily taken care of, but still took up time from the judges. Protocol No. 14 restructured how many judges that

9 This is often referred to as the principle of subsidiarity.

10 assessed each case and what mandate were given to each of the decision-making bodies of the Court. Prior to Protocol No. 14 it was a three-judge Committee that decided whether or not a case was inadmissible. Protocol No. 14 gave a single judge the power to do the same. When it came to cases within a well-established area of case-law, prior to Protocol No. 14, it was a seven-judge Chamber that handled the cases. After Protocol No. 14 came in to force, it was a three-judge Committee that did the same (Myjer et al., 2010, s.55-56).

Another big change was how the ECtHR could make the Contracting Parties oblige to the judgements from the Court. Before Protocol No. 14, there were no practical way of making sure the Contracting Parties implemented the judgements at a national level. The only possible sanction was exclusion from the Council of Europe, which would be a drastic measure (Helland, 2012, s.40). Protocol No. 14 gave the Committee of Ministers the opportunity to challenge a state before the ECtHR for failing to execute a judgement (ECHR, 1950, art.46(3)(4)).

2.2.3 Judges

There are 47 judges in the ECtHR at present day. One representative from each of the Contracting States. The judges are independent and have no obligation to their nation, even though they are elected from each of the Contracting States (ECtHR, 2018a). The ECHR (1950, art.21(1)) states that judges “…shall be of high moral character and must either possess the qualification required for appointment to high judicial office or be jurisconsults of recognized competence.”.

There are three measures taken to help ensure that the judges remain independent from the state they are sitting in respect of. First, how the judges are elected. A State does not choose their representative. The State presents a shortlist of three potential candidates to the Parliamentary Assembly of the Council of Europe, which then elects one of the candidates. Meaning, it is the Assembly who elects the judges, not the states (ECHR, 1950, art.22). Second, judges cannot be removed from office by a state. It requires a majority vote of two-third, from the other judges, stating that the judge in question no longer fulfill the requirements of office to remove a judge (Helland, 2012, p.47). Lastly, reelection. Prior to Protocol No. 14 judges were elected for a period of six years with the possibility to be reelected. That opened the door for a theoretical opportunity that a state could choose not to put a judge up for reelection, if the judge in question had voted in disfavor of his nation. Meaning, the reelection process gave the judge a potential incentive to vote favorable for the state he was sitting in respect of (Helland, 2012, p.47). When Protocol No. 14 came into force, the opportunity to be reelected was gone, as were any potential

11 incentive for the judges to vote in favor for a state party in proceedings before the ECtHR.

Judges are now elected for a non-renewable nine years. (Helland, 2012, p.47).

All 47 judges in the ECtHR come from different legal cultures. Arold (2007, p.320) found in her research that the legal cultural differences are irrelevant when it comes to assessing a case.

The judges in the court are driven by a common ideal of human rights. The judges believe that unanimity is a sign for higher legitimacy.

2.2.4 Single judge formation, Committees, Chambers and Grand Chamber

To be able to understand how the ECtHR evaluates each case, it is important to understand the structure of the Court. My research is mainly focused on the present day. I therefor limit myself to present the decision-making bodies of the Court as they are at present day.

When a case is submitted to the ECtHR it is first reviewed by a single judge, who decides if a case is admissible. If the case is declared admissible, the judge forwards the case to a Committee or a Chamber for further examination (ECHR, 1950, art.27). When sitting as a single judge, the judge shall not examine any cases involving the Contracting State of which he sits in respect of (ECHR, 1950, art.26(3)).

The Committee consist of three judges. They are given the mandate to either dismiss a case or rule in cases that are in an area of well-established case-law of the ECtHR. Every decision taken by the Committee must be unanimous (ECHR, 1950, art.28). In the Committee, the judge elected from the contracting party may be involved in the proceedings. If the judge is not a part of the Committee, the Committee may invite the judge to take the place of one of the other judges in the Committee at any time in the proceedings (ECHR, 1950, art.28(3)).

The Chamber consist of seven judges. At this point, the judge elected from the contracting party shall be one of the seven judges. The reason for this is to ensure that the Chamber have sufficient understanding of the legal system, in the involved state, to make the correct evaluation of, inter alia, the steps taken by the state to secure the disputed rights (ECHR, 1950, art.26(4), Helland, 2012, p.48-52).

The Grand Chamber consist of seventeen judges. Just as in the Chamber, the judge elected from the state concerned shall be one of the judges. The president of the Court, the vice-presidents and presidents of the chambers shall all sit in the Grand Chamber. However, none of the judges

12 that were in the chamber that referred the case to the Grand Chamber shall sit in the Grand Chamber (ECHR, 1950, art.(4)(5)).

2.3 The European Convention for the Protection of Human Rights and Fundamental