The European Court of Human Rights - Historical Presentation

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1 The European Court of Human Rights - Historical Presentation LAVINIA MIHAELA VLĂDILĂ, ILIOARA GENOIU, STELUȚA IONESCU, DANIL MATEI, MIHAI GRIGORE Faculty of Law and Social Sciences, Law Department University of Valahia from Târgoviște Str. Bd. Carol I, nr. 2, Târgoviște ROMANIA laviniavladila@yahoo.com; ilioaragenoiu20@yahoo.fr; steluta.ionescu@gmail.com danil_matei@yahoo.com; mihaigrigore73@yahoo.com Abstract: The European Court of Human Rights was founded effectively in 1954 when its judges were appointed. The Court was created in base of the European Convention of Human Rights, in the circle of the state who is members of the Council of Europe. From then until now the Court has made many changes of his procedure. Initially, the Court had a Committee that has made the primer analyze, but after the 11-th Protocol has been applied it was created a unique Court and it was given to any person (who lives legally in a state who is part of the Convention of Human Rights) the possibility to apply to this european instance. Nowadays, other changes are expected, after the 14-th Protocol will apply. Keywords: European Court of Human Rights, law, protocol, unique court, convention. I. Introduction. The European Court of Human Rights was founded by the European Convention for the Protection of Human Rights and Fundamental Freedoms [1] and its residence is at Strasbourg. The European Court of Human Rights is the one that guarantees the observance of the Convention and of its protocols by the signatory states. An important aspect which is remarkable is that this Convention was the first international document that organized the defense of the person against its own state, guaranteeing its fundamental rights and freedoms [2]. But the Court had to cover a long distance before its foundation. The World War II caused fundamental changes in the european conscience. As a consequence of these changes, the existence of a new institution was needed in order to guarantee the protection of a person rights against the state or against other persons, protection that was not effectively ensured by its own state. Since that moment, the human being and its rights and freedoms protection became a constant concern not only for the european legal framework but also for other states [3]. Thus, the representatives of 13 governments convened at Rome signed the European Convention for the Protection of Human Rights and Fundamental Freedoms (named the Convention). However, the Convention came into force on 3 rd September 1953, after three years when the Grand Duke of Luxembourg drew up the second ratification document [4]. II. The presentation of the most important moments of the activity of the European Court of Human Rights. The first writing of the Convention provided that the analysis of the infringement of fundamental rights and freedoms was made by the European Committee for Human Rights (named the Committee) and by the European Court of Human Rights (named the Court). The first members of the Committee were elected by the Committee of Ministers of the Council of Europe at Strasbourg, on 18 th May The first members of the Court were elected by the Parliamentary consultative Assembly of the Council of Europe, at Strasbourg on 21 st January Among the prominent personalities that had an essential role in the beginning history of the Court we mention Robert Schumann and René Casin that was vice president till 1965 and then he was the president [5] of the Court from 1965 to 1968; he remained a member of the Court until he died. The decisions of the Court have an important influence not only on the member states but also they have an important influence especially on natural person and on private legal persons that seek for the acknowledgement of their fundamental rights beyond the frontiers of their states. The importance of the knowledge of its organizing and functioning mode, of the proceedings which are developed within the Court and also the knowledge of its case law derives not only from the constitutional provisions but also from the Code of Civil Procedure and from the Code of Penal Procedure stipulations. Thus, according to article 11 (2) of the Constitution: The treaties ratified by the Parliament, according to the law, are part of the domestic law., and according to article 20 The constitutional provisions regarding the rights and freedoms of the citizens will be interpreted and enforced in accordance with the ISBN:

2 Universal Declaration of Human Rights, with the pacts and with other treaties at which Romania is part of. If there are discordances between the pacts and the treaties at which Romania is part and the domestic laws concerning the fundamental human rights, then the international provisions have primacy over the national ones, with the exception of the case when the Constitution or the domestic law contains more favorable provisions [6]. In the same sense we must mention the provisions of article 57 and of article 60 of the Convention. One the one hand, from these articles it results the necessity to present the mode the domestic law system ensures the effective enforcement of the Convention s provision to the Council of Europe Secretary General. On the other hand, it results that the stipulations of the Convention cannot limit the fundamental rights and freedoms acknowledged according to the domestic legal system of the High Contracting Parties. Thus, although there is a control over the mode the Convention is enforced in the member states, however if the domestic law provisions are more favorable then these one are to be enforced. This is the reason of the alteration of article 20 [7] when the Constitution was revised. Taking into consideration the analysis of the two constitutional texts named above (provisions of article 11 and of article 20 of the Romanian Constitution as it has been revised) it results that the relation between the international law and the national one is submitted to the following principles: the principle of pacta sunt servanda (article 11 (1)), the principle of the direct enforcement (article 11 (2)), the principle of the constitutional force (article 20 (1)) and the principle of the supralegislative force (article 20 (2)). The first principles have a general enforcement and the latter ones take into consideration the international jurisdiction regarding human rights [8]. The decisions of the European Court of Human Rights legally base on the Convention s provision. In the enforcement of its provisions the Court is the supreme interpreter of these provisions and therefore its case law has applicability in our law system. In fact, the influence of the Court s decision makes that these decisions influence the rights of some natural or legal private persons that agreed its proceedings; thus the Court s decision could lead to the modification, even to a partial modification of the effects of the decisions beyond recall pronounced by the national courts. The Court s case law shows that its members are open minded persons and it also proves their pragmatism. In this respect, the interpretations that have been given to the Convention have contributed to the extension of its field of enforcement. The Court considers the Convention as a living instrument which has to be interpreted in the light of the conceptions that nowadays predominate the democratic societies. At the same time, there have been taken into consideration the domestic juridical traditions and the moral conceptions of the concerned state (probably this is the reason of the fact that as a compulsory rule one of the judges of the panel has the nationality of the accused state). Even more, the dynamism of the interpretations has led to the creation of a genuine and coherent case law. Concerning the members of the Court, their pragmatism can be justified by the fact that the permanent concern is that to achieve not only a theoretical protection but also an effective and a real (concrete) protection of human rights [9]. The legal provisions regarding The European Court of Human Rights are stated in the II nd Title, from article 19 to article 51 of the Convention. These provisions are completed with the Court s Regulations that is established according to the 11 th Protocol and also they are completed with the European Agreement regarding the participants to the European Court of Human Rights proceedings that was drew up at Strasbourg, on 5 th March Vincent Berger defined the Court as being the promised land or the last democracy redoubt of the ancient continent. The judges and the clerks of the Court carry out its mission with an exemplary professionalism. Their goal is to make the protection of human rights not a generic and illusory right but an effective and a concrete guarantee [10]. Romania signed the Convention on 7 th October 1993 on the very day it became a member of the Council of Europe. The Parliament ratified the Convention on 20 th June 1994, thus the Romanian citizens had the opportunity to forward an individual recourse to the Court. The 11 th Protocol which has been added to the European Convention of Human Rights it was signed by Romania on 11 th May 1994 and the Parliament ratified it on 11 th August It is important to be mentioned that the 11 th Protocol of the Convention has brought important changes for the Court s organization and functioning. Thus, before 1 st November 1998 (when the Protocol came into force) only the contracting states [11] had principally the right of petition to the Court; the analysis of the demands was firstly realized by the Committee and then if the petition was admissible it was to be analyzed by the Court. The Protocol centralized the enforcement mechanism of the Convention, it created a unique permanent Court, giving the opportunity for all member states citizens to make direct petitions to the Court. The Protocol also strengthened the judicial system and stated the compulsory jurisdiction of the Court [12]. The procedural mechanism stated the following before the enforcement of the 11 th Protocol: the petition regarding the complaints against the contracting states that infringed the rights guaranteed by the Convention ISBN:

3 were forwarded to the Committee that decided on their admissibility. Those that were retained were submitted to a try of amiable regulation. In case of failure, the Committee drew up a report and stated the facts and drew up a notification regarding the merits of the cause. The report was forwarded to the Committee of Ministers. If the accused state accepted the compulsory jurisdiction of the Court, then the Committee and any other contracting state fixed a three months term (since the report was forwarded to the Committee of Ministers) to bring the case to the Court in order to pronounce a final and compulsory verdict. Private persons didn t have the opportunity to directly inform the Court. If a case wasn t submitted to the Court, then the Committee of Ministers was the one that decided whether the Convention was infringed or not. If necessary, it granted equitable satisfaction to the victim. The Committee of Ministers was responsible concerning the supervision of the Court s decision execution. After the 11 th Protocol was adopted the Committee ended its activity. However, in order to solve the petitions that the Committee declared as admissible before the enforcement of the Protocol named above [13] it continued its activity one more year, until 31 st October The necessity of the reform derived from the increasing number of the cases on the roll of the Court because of the fact that other more states were admitted to the Council of Europe. Thus, the Court had 404 cases in 1981, cases in 1993 and the number of cases got to in 1997 [14]. The reform was absolutely necessary because of the petitions increase. The elimination of the Committee was the first filter that was taken into consideration. The idea resulted also from the creation of a direct legal way for the citizens to inform the Court. They turned from the status of an object to the status of genuine international law subjects [15]. The presidents and the prime-ministers of the states reunited at Vienna on 9 th October 1993 were to increase the effectiveness of the means of protection, to reduce the duration of the proceedings which sometimes could get to 5-6 years from the lodgment of the petition to the decision pronouncement. The reform proposed to make the system accessible to any person and to maintain a high level of protection of human rights. At the same time, the decisional role of the Committee of Ministers was abolished. This reform generated new effects that haven t been taken into consideration at that time. The reform ensures a higher level of protection of human rights; the Court s legal proceedings were shortened. But the reform offered the opportunity to all citizens to inform the Court by a direct way, fact that led to a great increase of the petitions directed to the Court. Thus, in 1998 the Court had to solve cases, 1200 more cases than the previous year. As a consequence, a reorganization of the functioning mechanism of the Court was necessary. Therefore, a resolution was adopted at Rome, on 3 rd -4 th November 2000 when it was the celebration of 50 years since the Convention was signed. The resolution requested the Committee of Ministers to initiate, as soon as possible, an elaborate study of the different possibilities and options in order to ensure the effectiveness of the Court in the light of the new situation.... Basing on this resolution, the Committee of Ministers founded a Group of evaluation on february The group presented its report on September The Group recommended the elaboration of a protocol project that authorizes the Court to decline the examination of the complaints that do not raise merits aspects according to the Convention. Among other suggestions we mention those regarding the foundation of a new distinct division for the preliminary examination of the complaints or those regarding the appointment of a second national judge. At the same time, a possible alteration of the Convention has been taken into consideration. In this respect, the 14 th Protocol has been recently adopted but it hasn t come into force yet [16]. The Protocol brings up a series of important modifications regarding the functioning mechanism of the Court, for instance: regarding the individual petition the Court will declare it as inadmissible if the petition is incompatible with the provisions of the Convention or of its Protocols or if the plaintiff hasn t suffered an important prejudice, with the exception of the case when the observance of human rights guaranteed by the Convention or by its protocols imposes the merits examination of the petition and under the condition to not reject any petition because of this reason, petition which hasn t been properly examined by the national court [17]. An important modification is the legal provision of article 17 of the XIV th Protocol that alters article 59 of the Convention and it stipulates that the European Union, as an independent body, it can adhere to this Convention. After giving to the individuals the right to participate to the Court s proceedings, the new inserted alteration represents the first step in order to realize an international cooperation not only among the states as international law subjects but also among the international organizations. This aspect lacks the United Nations Charter which is the legal base of the International Court of Justice. According to the Charter, only the states and the member states of United Nations can be parties in litigation in front of the International Court of Justice [18]. Besides these modifications, there are many other alterations as we mention: the competence of the Commissioner for human rights to bring conclusions in front of the Court, Commissioner that works within the Council of Europe [19]; the competence of the ISBN:

4 Committee of Ministers to inform the Court when the concerned state does not execute the verdict [20]; the extension of judges mandate from 6 to 9 years [21] without the possibility to be re-elected; the clarification of the judges competence this time the panel of judges are structured as it follows: an unique judge, the Committees composed of three judges, the Chambers formed of 7 judges and the Great Chamber formed of 17 judges [22]. III. Conclusions. We observed that in the present days this European Court is one of the most important mechanisms from the European citizens to protect the fundamental rights. It has been evolved from a court of the states to a court of the people. With the exemption of the juridical mechanisms between UE, it represents the only international court in which people can complied with their petitions. References: [1] The Convention for the Protection of the Human Rights and Fundamental Freedoms was signed by the member states of the European Council at Rome, on 4 th November Romania ratified it by Law number 30/18 May 1994 with a reserve and a declaration (to be seen article 4 of Law number 30/1994) which came into force on 20 th June [2] Prof. dr. Ovidiu Predescu, The European Convention of Human Rights and the Romanian criminal law, Ed. Lumina Lex, Bucharest, 2006, p. 43. [3] There are similar courts in America. Thus, at present, it exists on this continent The Interamerican Court of Human Rights that has as a legal ground The American Convention regarding human rights and it has competences within The American States Organization. It is intended the foundation of a such similar court in Africa too, under the name of The African Court of Human and Peoples Rights, within The African Unity Organization. We also mention The Arabian Charter of Human Rights that does not institute a juridical mechanism yet, in order to ensure the rights stipulated by its contents. [4] In 2001, the Court s jurisdiction extended over 43 states that were members of the European Council and they had around 800 million nationals. At present, The Council of Europe has 46 member states. [5] From 1976 to 1980 the president of the Court was Pierre-Henri Teitgen that had a decisive role in the elaboration of the Convention and then he was a reporter of the Council of Europe and he permanently stated the thesis concerning the necessity of the Court. The next presidents had also an essential role; we mention here Rolv Ryssdal ( ) and Rudolf Bernhardt ( ). [6] The new legal text is the result of the alteration that was made by the Revision Law of the Constitution published in the Official Gazette of Romania number 669/ [7] At present the provisions of article 20 are is it follows: If there are discordances between the pacts and the treaties at which Romania is part and the domestic laws concerning the fundamental human rights, then the international provisions have primacy over the national ones, with the exception of the case when the Constitution or the domestic law contains more favorable provisions. [8] Lect dr. Corneliu Liviu Popescu, The case law of the European Court of Human Rights as a source of the Romanian positive law, Symposium Review, Ed. Arvin Press, 2003, p [9] Marin Voicu, The last hope for a complete justice. The European Court of Human Rights organizing and functioning, Ed. Juridica, Bucharest, p. 19. [10] Ibidem, p. 9. [11] With the exception of the states parties to the Convention that admitted the right of petition to the Committee. Romania admitted this right too. [12] Marin Voicu, op. cit., p. 31. [13] Information taken from regarding The European Court of Human Rights. [14] Ibidem. [15] Marin Voicu, op. cit., p. 36, taken from the induction into office speech of the new president of the European Court of Human Rights. Luzius Wildhaber the speech was made on 3 rd November 1998 when the new president took over its mandate. [16] The 14 th Protocol of the Convention was adopted at Strasbourg on 13 th May 2004 and it is to be enforced according to the provisions of article 19 of this document: in the first day of the month that follows to the 3 months term since all contracting parties have consented to be part of the Protocol, in accordance with the provisions of article 18. [17] The new conditions are stipulated in article 12 of the XIV th Protocol of the Convention that alters article 35(3) of the Convention. An important aspect that must be mentionned is that between the admissibility conditions added to the existing ones, it is used the conjunction or and it is not used the conjunction and, fact which means that the realization of one condition is sufficeient to declare the petition as being inadmissible. [18] According to article 4 point 1 of the Charter All the states that are keen on the world peace and that accept the obligations of the present Charter and also the states that are able to carry out these obligations according to the Organization s opinion, all these states can be members of the United Nations. [19] According to article 13 of the XIV th Protocol of the Convention that alters article 36 by adding a new paragraph. ISBN:

5 [20] According to article 16 of the XIV th Protocol of the Convention that alters article 46 point 3 of the Convention. [21] According to article 2 of the XIV th Protocol of the Convention that alters article 23 of the Convention. [22] Titus CorlăŃean, Categories of obligations that fall on the states as a consequence of the sentences pronounced by The European Court of Human Rights, Romanian Review of International Law, number 2/2006, Ed. All Beck, p. 179; Prof. dr. Ovidiu Predescu, op. cit., pp. 42 and (the annex with the translated text of the XIV th Protocol). ISBN: