1 Chapter 2 European International Human Rights Court System 2.1 The Council of Europe and the European Court of Human Rights The European Court of Human Rights located in Strasbourg, France was established in 1959 and operates as an international court on a full time permanent basis. The European Court of Human Rights is widely referred to as the conscience of Europe. Strasbourg is also the location of the Council of Europe which has as its governing body the Committee of Ministers. The Human Rights Commissioner of the Council is charged with raising awareness of, and promoting human rights in the 47 member States of the Council. The Committee of Ministers of the Council is comprised of the Foreign Ministers of the States which are members of the Council of Europe. The current 47 Council member States have, as per international legal agreement (The European Convention on Human Rights and Fundamental Freedoms which set out the guidelines for the creation and operation of the Court in 1950), agreed to be subject to the jurisdiction of the Court. Only members of the Council of Europe may be a party to the European Convention on Human Rights and Fundamental Freedoms. That Convention is the enabling legal instrument of the European Court of Human Rights, and most, but not all, human rights violations which come before the European Court of Human Rights concern violations of that convention (the European Convention on Human Rights and Fundamental Freedoms as amended by Protocol No. 11 which entered into force November 1, 1998 and Protocols No. 1, 4, 6, 7, 12 and 13 Additional to the Convention are included in Appendix B.1). The innovation in international law created by the European human rights system is that victims may bring a complaint of a human rights violation(s) directly to court themselves or through their legal representative (namely to the European Court of Human Rights) rather than relying on the State to do so. This is especially critical in that often it is the government through its agents that is the perpetrator of the abuse. S.C. Grover, Prosecuting International Crimes and Human Rights Abuses Committed Against Children, DOI: / _2, # Springer Verlag Berlin Heidelberg
2 38 2 European International Human Rights Court System 2.2 The European Convention on Human Rights and Fundamental Freedoms and the Rights of Minors The European Convention on Human Rights and Fundamental Freedoms which first entered into force in 1953 (and as amended by Protocol 11, entry into force in 1998) guarantees a diverse set of civil and political rights and freedoms (see Appendix B.1). Certain of the prohibitions in the Convention including, but not limited to the prohibition against torture, slavery, forced labor and deportation of targeted groups of the States own nationals, pertain to human rights abuses that may, depending on the particulars, rise to the level of a crime against humanity. This is especially the case when a specific identifiable group such as women, children or a certain ethnic group is targeted for systematic widespread human rights abuses by agents of the State. The European Convention on Human Rights and Fundamental Freedoms does not address the minor child s right to participate in decision making affecting his or her life (i.e., the right to be heard, consistent with the child s age and maturity, in administrative or judicial proceedings regarding decisions affecting the child). Further, the latter Convention for the most part does not address the protection rights of children as children. This is in contrast to the United Nations Convention on the Rights of the Child (1989; entry into force 1990) which includes both child-specific protection and participation rights, and a broad range of civil, political, economic and socio-cultural rights as they relate specifically to children (the CRC and one of its protocols are included in Appendix G.3 and G.4). Almost none of the articles in the European Convention on Human Rights and Fundamental Freedoms makes reference to child-specific rights and freedom guarantees An exception is the allowance for the exclusion of the public and press from all or part of a trial if deemed by the court necessary for the proper administration of justice in the trial of a juvenile (Right to a Fair Trial Article 6). Notwithstanding the almost complete exclusion of child-specific guarantees of rights and freedoms in the European Convention on Human Rights and Fundamental Freedoms, all of the articles are, nevertheless, applicable to minor children as persons with inherent, universal rights. Cases have been brought before the European Court of Human Rights concerning the rights of children pertaining to alleged violations regarding a range of articles in the European Convention on Human Rights and Fundamental Freedoms. Certain articles of the European Convention on Human Rights and Fundamental Freedoms, such as the right to marry (Article 12), defer to domestic law regarding at what age the right is to be conferred. Additional Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms includes a general right to education (Article 2) which is of particular though not exclusive relevance to children. This right to education, however, further includes the right of parents to ensure... education and teaching in conformity with their own religious and philosophical convictions which may or may not be in the best interests of a particular child in any specific set of circumstances.
3 2.3 The Structure of the European Court of Human Rights 39 Largely due to the fact that the European Convention on Human Rights and Fundamental Freedoms did not address children s human rights in particular, the Council of Europe adopted various Conventions to fill this gap in human rights protection for children in its member jurisdictions. These additional Conventions include the following: l European Convention on the Exercise of Children s Rights (entry into force July 1, 2000) (see Appendix B.4) l European Convention on the Legal Status of Children Born out of Wedlock (entry into force August 11, 1978) (see Appendix B.5) l European Convention on the Adoption of Children (entry into force April 26, 1968) (see Appendix B.3) l European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (entry into force June 1, 2000) (see Appendix B.2) l European Convention on Nationality (entry into force March 1, 2000) (see Appendix B.6) l European Convention on the Repatriation of Minors (not yet entered into force though adopted by the Council of Europe and opened for signature May 28, 1970) A complete list of treaties of the Council of Europe is available at Child complainants may directly, or through their official representative advance cases before the European Court of Human Rights relating to the above European children s human rights conventions also. 2.3 The Structure of the European Court of Human Rights The European Court of Human Rights has 47 judges in total as its full compliment and includes one judge for every State Party to the European Convention on Human Rights and Fundamental Freedoms (one for every member State of the Council of Europe). The judges are elected by majority vote of the Parliamentary Assembly of the Contracting Party to the European Convention on Human Rights and Fundamental Freedoms from a list of three candidates nominated by the Contracting Party. The judges are expected to function as an unbiased and independent judiciary and not as representatives of any particular State or advocates for any State s interests in any particular case they are assigned. A judge elected by a particular State will not necessarily have the nationality of that State. The President of the Court, Vice-President(s) of the Court, and Section Presidents are elected by the plenary court (full court) while the Section Vice-Presidents are elected by the section (division of the Court into sections is explained below). The Registrar and two Deputy Registrars are also elected by the plenary court.
4 40 2 European International Human Rights Court System The Sections Every judge of the European Court of Human Rights is assigned to one of five sections such that the section judges represent a balanced gender and geographic mix and represent a balanced mix of the various and differing domestic legal systems of the States Parties to the European Convention of Human Rights and Fundamental Freedoms. The objective is to ensure, to the extent possible, that all five of the Chambers of the European Court of Human Rights are equally broad in their representation on the aforementioned dimensions. This is intended then to increase the probability that every case which comes before one of the five Chambers (lower courts) will be dealt with fairly and have the same chance of success regardless of to which chamber the case is assigned. Each of the five sections is comprised of seven judges and includes a Section President and Section Vice-President (two Section Vice-Presidents also serve as Vice Presidents of the Court as a whole) and, in addition, a Section Registrar and Deputy Section Registrar. Judges are assigned to a section for three years. The European Court of Human Rights as a whole also has an elected President. The judges are currently elected for six-year renewable terms by the Parliamentary Assembly of the Council of Europe and retire at the age of seventy. However, half of these judges are then randomly selected by lot by the Secretary of the Council of Europe to have their term expire in three years. There are also additional provisions in the Convention as modified by Protocol No. 11 to ensure that at least half of the judges will have their terms expire in three years should additional circumstances necessitate the use of such provisions. A new protocol (Protocol No. 14), introduced in 2004 (not yet in force at the time of writing), once endorsed by all Council members, will provide for a nine-year non-renewable term for the judges of the European Court of Human Rights. To date Protocol No. 14 has been ratified by 46 of the 47 States Parties to the European Convention on Human Rights The Chamber (Lower Court) Most of the cases heard by the European Court of Human Rights are heard by the Chamber (lower court) comprised of the seven judges selected from the section to which the case was assigned. One of the seven judges is the President of the section to which the case was assigned. The lower Chamber also includes among its seven judges the judge elected by the respondent State party to the case (or another person chosen by that State Party in question who sits in the capacity of a judge in instances where the person elected is unable to serve).
5 2.3 The Structure of the European Court of Human Rights The Grand Chamber: Re-hears Selected Cases De Novo Post-chamber Judgment or Hears Selected Cases that Have Been Referred to It Directly by the Chamber (no Chamber Judgment) The upper chamber is named the Grand Chamber and it is empowered to re-hear cases de novo on request by one or both parties but will do so only in very selected cases. The cases will come before the Grand Chamber for re-hearing only if accepted by the five member Grand Chamber screening panel which considers the application for a re-hearing (that application being made by one or both of the parties to the case). Alternatively, the Grand Chamber may hear the case when the lower Chamber relinquishes its jurisdiction and the case concerns central questions regarding the Convention or its application or other important questions that require clarification. The Chamber may relinquish jurisdiction to the Grand Chamber at any point prior to rendering its judgment. The Grand Chamber is comprised of 17 judges and at least three substitute judges who can serve as alternates if one of the 17 judges of the Grand Chamber is unable to serve. The Grand Chamber includes among the 17 judges the President and Vice-Presidents of the European Court of Human Rights, and the five section Presidents. (Any Vice-President of the Court or President of a Section who is unable to sit as a member of the Grand Chamber is replaced by the Vice-President of the relevant section.) In cases to be re-heard on application for re-hearing by one or both parties (that application having been screened and accepted by a five member Grand Chamber screening panel), no judge who sat on the lower Chamber panel dealing with the case and rendered judgment will also be on the Grand Chamber panel which re-hears the case de novo with the exception of: l The Section President of the lower Chamber that rendered the judgment l The judge elected by the State that is a party to the case who previously sat as an ex officio member on the case in the lower Chamber that rendered a judgment (or the substitute judge from that State that sat on the Chamber panel that rendered judgment in the case in the lower Chamber) l Any judge that sat in regard to the decision on admissibility of the case Since the Grand Chamber is re-hearing the case de novo (afresh), the Grand Chamber is empowered to consider both admissibility and merit with respect to the allegation (s) of Convention violations it examines. The cases which are accepted by a screening panel of the Grand Chamber for re-hearing and come before the Grand Chamber must first have been ruled admissible by the lower Chamber ( the Chamber ) on one or more alleged Convention violations. It is important to understand that the Grand Chamber in re-hearing a case will consider only those alleged violations in the case that have been previously ruled admissible by the Chamber (lower Court). The Grand Chamber could reverse or affirm either or both the lower Courts rulings on admissibility or merit as regards to one or more of the alleged violations.
6 42 2 European International Human Rights Court System Where the Chamber has relinquished its jurisdiction over the case and referred the case to the Grand Chamber, the Grand Chamber will issue a ruling on admissibility of each alleged Convention/Protocol violations made in the case and, for those ruled admissible, a ruling on merit in the same judgment and a determination regarding just satisfaction (financial compensation) if any to be awarded. Rulings are by majority vote. The Grand Chamber in all cases before it will consider the legal issues de novo (afresh) thus considering everything again (that is issues regarding law or mixed law and fact) as pertains to admissibility and merit. 2.4 Jurisdiction The European Court of Human Rights has jurisdiction to rule via binding judgments regarding: l State Party violations of the European Convention on Human Rights and Fundamental Freedoms (the Court s enabling legal instrument) as modified by Protocol No. 11; and l State infringements of the additional protocol(s) to the European Convention on Human Rights and Fundamental Freedoms as set out in the most recent amended version of the Convention (where the State Party to the case has also ratified or acceded to the Protocol(s) in question); and l State violations of such additional Conventions as agreed upon by the Council of Europe which are in force such as, for instance, those mentioned above regarding children s rights (where the State Party in question has also ratified or acceded to the additional Convention(s) at issue in the case). The European Court of Human Rights thus is not an appeal court for national courts. Therefore, the Court cannot reverse or in any way change any ruling by a national court, nor alter or quash any domestic laws of the States Parties to the European Convention on Human Rights. The European Court of Human Rights operates as a body that helps shed light on the extent of State compliance with the European Convention on Human Rights (and its Protocols) and certain other operative European Conventions adopted by the Council of Europe and ratified or acceded to by some or all of Council of Europe member States. This by hearing admissible cases brought by individuals, organizations or State Parties concerning alleged infringements, and by making declarations regarding alleged violations, and ordering, in the proper cases, just satisfaction and/or certain other remedies. In exceptional circumstances (i.e., where there is a risk of imminent serious physical harm to the complainant by agents of the State Party or Parties in question for whatever reason), the Court may act on behalf of the complainant to intercede with the government(s) in question to ask that certain protections be afforded the complainant by the government(s) involved as the case proceeds. The geographical jurisdiction of the European Court of Human Rights extends only to the 47 States Parties to the European Convention on Human Rights and Fundamental Freedoms who, as mentioned, also comprise the Council of Europe.
7 2.6 European Court of Human Rights Case Processing System 43 However, the reach of the Court s jurisdiction is vast and, at present, includes the United Kingdom and every European state except Belarus. This then covers a combined population of 800 million citizens living in those States. However, it should be noted that both: l Nationals of the States Parties to the European Convention on Human Rights and Fundamental Freedoms l Any other persons (i.e., refugees, asylum seekers, displaced persons, stateless persons, etc.) present in the jurisdiction of one of the States Parties to the European Convention on Human Rights and Fundamental Freedoms, or in a territory under the control of that State Party at the time of the alleged State Convention infringement which caused them direct, personal harms, are potentially covered by the guarantees of the Convention. Thus, State violations of the Convention may be addressed to the European Court of Human Rights by the latter individuals as well. This, provided that, among other admissibility criteria being met (which are discussed below), the State violations occurred after the respondent State ratified or acceded to the European Convention on Human Rights and Fundamental Freedoms, or if the violation is of the Convention Protocol(s), that the infringement occurred after the ratification by that State Party of the additional Protocol in question. (The same is true also with respect to petitions regarding State violations of any other Convention adopted by the Council of Europe and within the jurisdiction of the European Court of Human Rights.) 2.5 Enforcement The Committee of Ministers of the Council of Europe, with the assistance of the Department for the Execution of Judgments of the European Court of Human Rights, is responsible for the enforcement of the judgments made by the European Court of Human Rights. This includes, but is not limited to, ensuring that any monetary compensation and or court costs (referred to as just satisfaction) ordered by the court is in fact paid to the complainant victim(s) of violations of the Convention and/or the Protocol(s) at issue. The ultimate sanction would be the State s expulsion from the Council of Europe for non-compliance with the Court s order for just satisfaction or any other remedy. 2.6 European Court of Human Rights Case Processing System Petitioning the European Court of Human Rights The European Court of Human Rights is charged with enforcing the provisions of the European Convention on Human Rights and Fundamental Freedoms and its
8 44 2 European International Human Rights Court System additional Protocols and certain other additional Conventions such as those concerning children s rights as mandated by the Council of Europe. Petitions to the Court seeking a remedy for alleged infringements of Convention provisions may be brought by: l Individuals directly harmed, or others accepted by the Court as the official representatives of the harmed persons (i.e., parents as complainants on behalf of a minor child victim, NGOs on behalf of victims, etc.), l Groups of individuals directly harmed, organizations such as NGOs considered as legal entities who have members victimized, or l One Convention State Party against another (though the number of inter-state petitions to the Court are very few). There is no bar against minors bringing cases forward to the European Court of Human Rights. However, the fact that applications to the Court are ruled inadmissible if not all domestic remedies have been exhausted poses special difficulties for minor children. This is the case in that minors generally do not have legal capacity to bring cases in their own name in the various European State Parties to the Convention, and the child may have no adult or organization to act on his or her behalf in advancing the case in their home country. Hence, children with legitimate cases under the European Convention on Human Rights and Fundamental Freedoms and/or the additional protocols or other Convention within the scope of the Court may have their cases ruled inadmissible on purely technical procedural grounds (i.e., due to their inability to exhaust all domestic remedies prior to seeking justice via the European Court of Human Rights) The Admissibility Decision Made by Committee or by the Chamber If a case is not dismissed on administrative grounds such as insufficient information (i.e., alleged violations of the Convention and/or Protocols not stipulated, or the form for the petition not being filled out, etc.), the case is assigned to one of the court s five sections. A judge rapporteur from one of the sections screens the case and decides if the case should be referred for the admissibility decision to either: l A judicial committee comprised of three judges from that section (the judges in the committee sit for a fixed term and listen to the numerous cases as a committee for the duration of the committee s term), or l The Chamber composed of seven judges (selected from the section to which the case has been assigned). If the case proceeds to the chamber (either directly, or because it first went to the judicial committee and was not unanimously struck out there), the Chamber will render a decision on admissibility by majority vote.
9 2.6 European Court of Human Rights Case Processing System The Separate Vs. Joint Procedure by the Chamber The Chambers of the European Court of Human Rights must always decide on the admissibility of the case before reaching issues of merit. That is, one or more of the alleged Convention or Protocol violations must be ruled admissible and the case must succeed in this respect before the merits can be decided. The lower Chamber ( the Chamber ) of the Court will usually issue the admissibility decision first and, if the case is deemed admissible, it will then be considered on the merits and a separate judgment regarding merit rendered (separate procedure). The lower Chamber in its judgment regarding merit will consider the issue of remedy and whether just satisfaction should be awarded given all the circumstances of the case (just satisfaction financial compensation for damages and/or court costs-may or may not be awarded in regards to a State Convention/Protocol violation). However, there are instances where the court adopts what is termed the joint procedure in which both admissibility and the merits can be considered together i.e., where the two are inextricably intertwined as when the State will not allow certain categories of persons access to the domestic courts thus: l Effectively preventing the complainant from exhausting all domestic remedies, a requirement for admissibility, and l Simultaneously violating the fundamental European Convention on Human Rights and Fundamental Freedoms guarantee to an effective remedy for harms perpetrated by the State (Article 13 of the Convention). In such a case, the decision regarding admissibility and the decision regarding the merits of the case will be included in the same judgment. It is possible, however, that the respondent State, after being notified that a joint procedure will be adopted, on its own initiative offers a friendly settlement before the case is heard. In that instance, the case will be struck Negotiating a Friendly Settlement If the case is ruled admissible under the separate procedure previously mentioned then the registrar s office of the court will attempt, through confidential negotiation/ mediation, to have the parties reach a friendly settlement. If a friendly settlement is reached, the case will be struck (to be reinstated only if new circumstances warrant). If the friendly settlement is not forthcoming, the Chamber will issue a separate decision on the merits after consideration of any further evidence and submissions by the parties and any public hearings in the case. (A case can also be struck if the complainant withdraws the complaint at any point in the process.) Case Admissibility Criteria The complainant may allege one, or more than one violation of the European Convention on Human Rights, its protocols and/or of another Convention within
10 46 2 European International Human Rights Court System the scope of the Court. Each alleged violation will be assessed in regards to admissibility. Hence, it is possible to have certain alleged violations considered admissible for adjudication by the Court, while others pertaining to the same case are determined to be inadmissible. The State is given the opportunity to make submissions on the issue of admissibility and the complainant to reply to the State s position prior to the lower Chamber issuing the admissibility decision as a separate ruling or as part of a judgment that also addresses merit (the latter being under the joint procedure ). The State and the complainant may also make submissions on the admissibility issue to the Grand Chamber if the case comes before the upper Chamber as the latter will hear the case de novo as mentioned. The Grand Chamber will address the admissibility issue along with the merit issue in one judgment (i.e., ruling on merit for one or more of the alleged Convention violations it considers admissible). The complaint regarding any particular alleged violation(s) will, barring any other relevant factor, be ruled admissible if: l l l l l It concerns an infringement of the Convention/Protocols by a State Party (or Parties) to the Convention/Protocols within the jurisdiction of the European Court of Human Rights; hence, the complaint is not against a private person or private company, but rather against the State Party or Parties concerned due to the actions or inactions of the agents of the State which constitute violations of the Convention or the Protocols ratified or acceded to by the State Party. Hence, the allegations are not an abuse of the right to file a complaint to the international Court; An identified individual victim has made the complaint either directly or through an official representative; a group of individuals, at least one or more of whom are identified in the application, has made the complaint on their own behalf, or through an official representative; an organization recognized in law as a legal entity has made the complaint as a victim, or a State Party to the Convention has made the complaint against another State Party; The individual victim or group of individual victims were in the jurisdiction of the State Party to the case at the time of the violation(s). Being within the jurisdiction of the State is generally understood to mean being in the territory of that State; or in a territory effectively controlled by that State and thus may arguably include also the victim being in the custody and control of the State in question even if not in the territory of that State; The violations took place after the State Party or Parties involved had ratified or acceded to the Convention/Protocol in question (hence the date after which Convention/Protocol violations must have occurred for potentially admissible complaints to the Court will vary for different State Parties); The individual or group of individuals or other party bringing the case is held by the European Court of Human Rights to be the direct victim(s) of the infringements, or are accepted as the proper and official representative(s) of those specifically identified direct victim(s) who for some reason are unable to advance the complaint in their own right;