The case law of the European Court of Human Rights (ECtHR) covers a wide range of subjects arising out of the application of the provisions of the European Convention on Human Rights (ECHR) and its Protocols. It must however be noted that not all the Member States of the Council of Europe have ratified the Protocols to the ECHR and even those who have ratified them have made declarations and reservations to some of the provisions contained in them.
As will be demonstrated below, the ECtHR is not only concerned with declaring violations of the Convention against individuals, but also with matters concerning the proper implementation of the Convention and its Protocols and factual execution of its judgments. In this way, it established a unique practice which can be applied in similar cases.
- The role of the Court towards fundamental human rights preservation
The significance of the ECtHR lies in the impact of its case law on the legal and political systems of the Convention’s 47 contracting parties. The case law of the ECtHR, between 1960 and 1998 is outstanding. As Jean Paul Costa, the former Vice-President of the ECtHR said, although some of its judgments may be criticized, its case law as a whole had made a positive contribution to the protection of human rights in Europe. It has done so, not only by providing remedies to persons whose rights have been violated, but also by encouraging the contracting states to modify their legislation or case law.
The ECtHR has in many cases identified structural problems in civil, criminal and administrative proceedings in countries that are otherwise stable and well-functioning democracies. At the other end of the spectrum, the ECtHR has also played a role in upholding the rights of victims. In this connotation, the case of Khaled El-Masri v. R.Macedonia (No.39630/09 of the ECtHR) is one of the best documented extraordinary renditions by the CIA-US Central Intelligence Agency where the ECtHR was the first court to comprehensively and specifically find that the CIA’s rendition techniques amounted to torture. In the case of Yandiyev and others v. Russia (No. 34541/06, 43811/06 and 1578/07) related to disappearance of the applicant in Chechnya, the ECtHR for the first time ruled in a case involving disappearance and found Russia guilty for violation of the Article 2.
The protection of human rights that the Court offers can be located in Article 13 in the ECHR entitled “Right to an effective remedy”. This article guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights in whatever form they might happen to be secured in the domestic legal order. In the case of McFarlane v. Ireland (No.31333/06), the ECtHR found violation of Article 13 of ECHR dismissing the Government’s objection as to the exhaustion of domestic remedies. Similar findings were noted in the cases of Nasr Et Ghali v.Italy (No.44883/09) and Chervenkov v. Bulgaria (No.45358/04).
In accordance with the above mentioned, Article 13 can be interpreted in correlation to Article 34 i.e. the right to individual application. It means that the applicant has to claim to be a victim of a breach of a right under the Convention. However, this requirement has two elements: the first adresses to the fact that the applicant has to be affected by an action or omission by a contracting state, and the second one to the fact that the applicant must not have gained sufficient redress yet. For instance, in the case of Benamar and others v France, the Court rejected Benamar‘s application, by which he claimed that the expulsion order violated his rights under Article 8 as inadmissible because the order did not have any legal effect. Article 34 of the ECHR has been engaged also in the cases of Monnat v.Switzerland (No.73604/01), Zakharov v, Russia (No.47143/06), Rooman v.Belgium (No.18052/11) and many others.
Hence, it can be noticed that the ECtHR takes seriously applications for alleged violation of the most inviolable rights such as Articles 2 and 3 of the ECHR. These cases are especially sensitive having in mind the nature of the possible violation, but also the consequences from the Courts‘ decisions.
- The Strasbourg Court as a developer of legal doctrines on human rights
Several design features of the European human rights regime reflect the ECtHR’s diffuse embeddedness in national legal systems according to Professor Laurence Helfer. His findings about the Court’s diffuse embeddedness arise from the List of Individual Measures adopted by the Committee of Ministers where comprehensively have been listed the measures that the Member States have adopted following adverse ECtHR judgments to remedy the effects of Convention violations for individual applications. First, the Court frequently reviews challenges to domestic judicial decisions that interpret and apply constitutions, legislation and administrative practices. When Strasbourg judges conclude that these decisions violate one or more Convention’s rights, states must, whenever possible, restore the complainant’s position to the one he or she occupied prior to the violation. In this sense, ECtHR judgments do modify and overturn the rulings of domestic courts. A second dimension of diffuse embeddedness concerns the relationship between the ECtHR and national parliaments. Consistent with the Strasbourg supervisory system’s lack of direct embeddedness, the Court’s judgments are binding only as a matter of international law and only upon the parties to the dispute (See Article 46 of the ECHR). This “inter partes” mandatory force is important because the contracting states of the ECHR need to respect and apply the Court’s judgments on a national level.
Although ECtHR’s activity has been full of success, it does encounter certain problems. Constitutional courts in Europe have a consistent track record of taking Strasbourg case law seriously. However, and this thesis has been supported by Professor Helfer, “lower tribunals, by contrast, have shown a decided ‘lack of enthusiasm’ for applying the ECHR as interpreted by the ECtHR”.
In addition, this is not the only problem the Court is faced with. Increased number of applications each year suggests that the ECHR provisions are not respected enough and that there are still human rights violations that were not successfully stopped. The necessity for structural measures implies to the fact that ECtHR is not a “fourth instance” court and that the national courts are those which need to make accurate assessment of facts and law and guarantee the most effective protection of individual rights. In order to decrease the number of applications and to decrease the number of Court’s judgments, structural reforms are needed in the states parties of the Council of Europe. Strengthening the capacity of domestic institutions to remedy human rights violations is just one segment. Another major problem with which the Committee of Ministers should deal in the future is the slowness or lack of execution of the ECtHR judgments which seriously jeopardize the guaranteed human rights.
In recent years, the ECtHR has modified its jurisprudence to embed itself more firmly in national legal and political systems. In some circumstances, when the domestic authorities refused to investigate or failed to investigate human rights abuses, the ECtHR acted as a first instance tribunal in findings facts necessary to decide whether one state has violated the applicant’s rights. In some of the cases elaborated above, the Court was very strict due to the states responsibility in failure to comply with the Convention’s provisions and due to the lack of success in respecting those rights. The ECtHR has also developed a more capacious understanding of the Convention’s domestic remedies provision. And it has markedly expanded its remedial powers, issuing rulings that require states to provide specific non-monetary reparation. However, the non-execution or delayed execution of the ECtHR judgments is a systematic problem which requires in the future adoption of comprehensive integrated domestic strategies.