The European Court of Human Rights

European Court of Human Rights Jurisdiction

The ECtHR has jurisdiction over all 47 Member States of the Council of Europe. Thus, the court has the power to hear and decide on applications related to alleged violations of human rights by these Member States.

Requirements for a Case to be Admissible

In order for a case to be admissible before the ECtHR, several requirements must be met:

• Exhaustion of domestic remedies - The applicant must have exhausted all domestic legal remedies within the responding state before applying to the ECtHR.
• Time limit - The application must be made within six months from the final domestic decision in the case.
• Victim status - The applicant must be a victim or have a direct connection to a victim of an alleged human rights violation.
• An alleged violation of a right or freedom protected by the convention and its protocols.
• The application cannot be anonymous.
• The application must not be substantially the same as another matter previously examined by the ECtHR or another international investigation or settlement procedure.

Procedure for Submitting a Case

The procedure for submitting a case to the ECtHR is as follows:

1. The applicant must complete and submit an application form, available on the ECtHR website.
2. The Registry of the ECtHR will acknowledge receipt of the application and may request further information or documents.
3. Once the application is complete, the court may decide on the admissibility of the case. If necessary, a public hearing may be held to further assess the arguments and facts of the case.
4. If the case is declared admissible, the court may communicate the application to the government of the responding state, asking for their observations on the case.
5. The court will then deliver a judgement on the merits of the case, which will be final and binding on the parties.

Members of European Court of Human Rights

The ECtHR is composed of one judge for each member state of the Council of Europe, currently 47 judges in total. These judges must be of high moral character, possess qualifications required for appointment to high judicial office, or be jurisconsults of recognised competence. Judges serve in their individual capacity and shall not be influenced by any external factors or pressures.

Selection and Term Lengths of Judges

The judges of the ECtHR are selected through a multi-step process:

1. Each Member State presents a list of three candidates, ensuring a fair balance between gender and qualifications.
2. The Parliamentary Assembly of the Council of Europe elects a judge from that list by adopting the recommendation of its Committee on the Election of Judges to the European Court of Human Rights.

Judges are elected for a non-renewable term of nine years. However, the retirement age for judges is 70, and judges who turn 70 before the end of their nine-year term must retire. To ensure continuity in the court's functioning, the terms of office of one-third of the judges are renewed every three years.

European Court of Human Rights Cases

The European Court of Human Rights has delivered many judgments that have significantly impacted human rights protection and interpretation in Europe. Each case has contributed to the development of human rights jurisprudence and consistently sought to promote respect for human rights in the Member States.

Landmark Cases in Human Rights Law

Landmark cases are those that have had a profound impact on human rights law and paved the way for new interpretations of human rights issues. These cases often address fundamental issues such as the right to a fair trial, freedom of expression, or the prohibition of torture and inhuman or degrading treatment. Some of the most noteworthy landmark cases are detailed below.

Right to Fair Trial Cases

The right to a fair trial, protected under Article 6 of the European Convention on Human Rights, is an essential component of the rule of law and a functioning democracy. The ECtHR has delivered numerous judgments related to this fundamental right, some of which include:

• Golder v. United Kingdom (1975): Established the principle that an individual has a right to access a court and legal representation to protect their civil rights and obligations, even while in prison.
• Barberà, Messegué and Jabardo v. Spain (1988): Introduced the importance of impartiality in judicial proceedings and the concept of "equality of arms," meaning that all parties to a case must have the same opportunity to present their case effectively.
• Salduz v. Turkey (2008): Held that an accused person must have effective access to independent legal assistance, particularly during police interrogation, to ensure the procedural safeguards of a fair trial.

Freedom of Expression Cases

Freedom of expression, enshrined in Article 10 of the European Convention on Human Rights, is crucial for individual self-fulfilment and maintaining a democratic society. The ECtHR has issued significant judgments defending this right, including:

• Handyside v. United Kingdom (1976): Established the principle that freedom of expression includes not only information or ideas that are well-received and inoffensive but also those that may offend, shock or disturb. This judgment highlighted the importance of upholding freedom of expression in a democratic society.
• Jersild v. Denmark (1994): Reaffirmed the importance of protecting journalistic freedom, even when reporting on controversial and distressing topics, to ensure the free flow of information and ideas in society.
• Pentikäinen v. Finland (2015): Held that the right to freedom of expression extends to the protection of the press in covering public demonstrations, which is essential for transparency and the functioning of democracy.

Recent Cases and Their Impact

Recent cases before the European Court of Human Rights continue to shape human rights law in Europe and have a lasting impact on the development of legal principles. Some notable recent cases include:

These recent cases demonstrate the evolving nature of human rights law and the European Court of Human Rights' ongoing commitment to addressing pressing and complex issues in the field.

Brexit and the European Court of Human Rights

Brexit, the United Kingdom's withdrawal from the European Union (EU), has raised questions about the country's relationship with the European Court of Human Rights (ECtHR) and the future of human rights protection in the UK. In this context, it is essential to understand the relationship between Brexit and ECtHR as well as the potential implications for UK law and future cooperation between the UK and the Court.

Relationship Between Brexit and European Court of Human Rights

Although Brexit primarily concerns the UK leaving the EU, it is important to clarify that the European Court of Human Rights is not an EU institution. The ECtHR is established under the European Convention on Human Rights, which is part of the Council of Europe, a separate organisation from the EU. As such, Brexit does not directly affect the UK's membership in the Council of Europe or its obligations under the European Convention on Human Rights.

However, considering that EU law incorporates human rights standards and includes references to the European Convention on Human Rights, Brexit may have indirect implications for human rights protection in the UK.

Potential Implications for UK Law

While Brexit itself does not impact the UK's obligations under the European Convention on Human Rights, there are potential implications for UK law and human rights protection that may arise after the withdrawal. Some of these implications are listed below:

• Impact on domestic law: EU legislation and case law, which previously had direct effect in the UK, will no longer apply after Brexit. This could lead to gaps in domestic human rights protection, particularly in areas where EU law played a significant role.
• Influence of ECtHR judgments: Although ECtHR judgments remain binding on the UK, the influence of those judgments on UK courts may change. Post-Brexit, the UK courts may no longer be required to take ECtHR case law into account when interpreting human rights issues, potentially leading to diverging interpretations of the Convention rights.
• Changes to the Human Rights Act 1998: Prior to Brexit, there were discussions about the potential repeal of the Human Rights Act 1998 and its replacement with a British Bill of Rights. The implications of such a move would depend on the content of the proposed Bill and its compatibility with the European Convention on Human Rights.
• Indirect influence of EU law: As the UK negotiates future trade and cooperation agreements with the EU, it may be required to comply with EU human rights standards in certain areas, which could indirectly affect domestic human rights protection.

Future Cooperation Between UK and European Court of Human Rights

Despite Brexit, the UK remains a member of the Council of Europe and continues to be bound by the European Convention on Human Rights and the judgments of the European Court of Human Rights. There are several ways in which future cooperation between the UK and the ECtHR could continue to develop:

• Maintaining existing cooperation mechanisms: The UK could maintain its current obligations under the Convention and continue to participate in existing cooperation mechanisms with the ECtHR, such as submitting regular reports on its implementation of the Court's judgments and engaging in dialogue on human rights protection.
• Enhancing cooperation on human rights issues: The UK could seek new opportunities for cooperation with the ECtHR and other Council of Europe Member States on human rights issues, such as addressing emerging challenges, sharing best practices and promoting the further development of human rights jurisprudence.
• Contributing to the effective functioning of the ECtHR: The UK could continue to play an active role in supporting the Court's effective functioning by, for example, ensuring the timely implementation of judgments, providing financial support, and offering expertise in the form of judges and other legal professionals.
• Engaging in dialogue on the future of the European human rights system: The UK could actively participate in discussions and initiatives aimed at improving the effectiveness and efficiency of the European human rights system, as well as exploring ways to address potential gaps in protection resulting from Brexit.

In conclusion, while Brexit does not directly impact the UK's relationship with the European Court of Human Rights, it raises questions about the future of human rights protection in the UK. These concerns can be addressed by maintaining the UK's commitment to the European Convention on Human Rights and seeking new avenues for cooperation with the ECtHR and other Council of Europe Member States.