The European system

The European system is the forerunner among the human rights protection mechanisms and is generally recognised as being the best performing of them all. It developed within the Council of Europe starting with the adoption of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This Convention provides for two different types of proceedings: individual complaints on the one hand, which has proven to be the main modus operandi of the system, and Inter-State complaints on the other hand, a course of action which is rarely used.  

With time, 13 Additional Protocols have been adopted. Certain of these provide for new rights; others have totally redesigned the monitoring system.  

Ever since Protocol No 11 came into effect in 1999, the new system is based on a single Court made up of as many judges as there are member countries and divided up into five sections. Generally, it works in chambers established in each section and composed of seven members-including, for each case, the judge nominated by proposition of the defendant State. On rare occasions it takes the form of a Grand Chamber, consisting of 17 judges, including the President, the two Vice-Presidents and the five section Presidents. A case will be heard by the Grand Chamber only if a lower Chamber considers that it must be deferred to it in light of the importance of the questions raised or the risk of discrepancy with prior case law, and this unless one of the parties successfully opposes such a course of action.  

Another notable development has been to broaden to a much greater extent the right for individuals to submit complaints, whereas in the past it was necessary that the State in question had specifically accepted the right for its citizens to appeal to these bodies. As of today, any individual or group of individuals under the jurisdiction of a State party to the ECHR may file a complaint alleging violation of one of the guaranteed rights.   Once the petition has been received, public hearings, based on the adversarial principle, can be initiated. The assistance of a lawyer is highly recommended from the very outset, and is required in the majority of cases from the time the complaint is lodged. The procedure begins with the verification that the conditions of admissibility are indeed fulfilled, and follows on with consideration of the merits of the case. In doing so the Court normally returns two separate decisions, although it can be possible to combine the two into one single decision.  

Each complaint received is assigned to a section, whose president designates a rapporteur. According to a relatively complex system of assignment, the admissibility of the complaint is decided either by this judge or by a three-member Committee or by a chamber which would then determine both the admissibility and the merits.  

As to the consideration of the overall merits of the case, the parties are generally invited to present written remarks and provide additional documentation.

The Court can hold hearings-which are then opened up to the public, unless there are valid reasons against doing so. In the majority of cases the Court can manage without one but, if a hearing is held, it normally takes place during the phase devoted to discussion on the merits of the case.  

During the discussion on the merits of the case, the Registrar of the court will attempt to mediate between the parties to try to reach a friendly settlement. These proceedings take place in strict confidentiality.  

Decisions on the merits of any case can be reviewed by the Grand Chamber at the request of one or the other of the parties, when the question under review is of an especially serious nature. However, in this is the case it is necessary that the request for such a review be endorsed by a college of five judges from the Grand Chamber. Failing this, the decision of the Lower Chamber becomes final.  

Final decisions of the European Court of Human Rights confirm either the existence of a violation of one or more rights guaranteed under the ECHR, or the complete absence of any violation. In the first of these cases, the decisions also determine what should be awarded as just satisfaction. These decisions are fully binding on the Defendant State. The Committee of Ministers of the Council of Europe is responsible for supervising their enforcement by the State.