The European Human Rights System

Grigory Dikov is a legal advisor at the Jurisconsult Directorate of the European Court of Human Rights (Strasbourg). He previously was Head of Division in the Secretariat of the Venice Commission of the Council of Europe and a law clerk at the Registry of the European Court of Human Rights. Olga Chernishova is a Deputy Section Registrar at the European Court of Human Rights.

1. Introduction

This article is intended primarily for researchers who need a general overview of the European human rights system. It describes the history that led to the Council of Europe’s founding and later to its expansion, its primary political and legal organs, the European Convention for the Protection of Human Rights and Fundamental Freedoms, principles of the interpretation of this Convention, the procedures of the European Court of Human Rights, compliance with the judgments of the Court. It also explores recent challenges faced by the European human rights system and possible answers to them. This article will briefly touch upon other human rights instruments and mechanism existing within the Council of Europe system, but its main focus is the system of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

2. Context

In 1945, Europe emerged from the horrors of the Second World War. History was pushing it toward cooperation. A plethora of organizations supporting the idea of cooperation grew up in response to the post-war context and the Cold War divide between the Unites States and other democratic States on the one side and the Soviet Union and its allies on the other. Several of the most important of these organizations held a “Congress of Europe” in The Hague in May of 1948. Churchill, who in September 1946 called for “a kind of United States of Europe,” was honorary president.[1] It was at this conference that ideas such as a parliamentary assembly, a court of human rights, and the right of individual petition were first proposed.[2] At that time, the creation of a regional mechanism of protection of human rights was seen as a bulwark against both totalitarianism and communism, a response to the past and current events in Europe. The idea was to proclaim the principles on which the Western European states stood, and to provide a remedy that would protect these principles from undemocratic subversion. It was believed that the Council of Europe, and primarily the Convention, would serve as an alarm-bell that would alert other member states about large-scale human rights violations, and allow them to act timely to prevent those, to avoid the horrors of war.[3]

3. The Council of Europe and Its Main Bodies

The Council of Europe emerged from the Congress of Europe on May 5, 1949. The founding document of the Council is its Statute. The preamble reaffirms the contracting states’ “devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy… ”.[4] Article 1 states that the Council’s aims are “to achieve a greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress.”[5] Any European State may become a member of the Council of Europe as far as it accepts the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.

The organization is governed primarily by the Committee of Ministers (the CM), an executive body which consists of the foreign ministers of the contracting states or their designated substitutes.[6] Article 14 gives each contracting state one representative, and each representative has one vote. Article 15 gives the CM the authority to conclude conventions or agreements and make recommendations to governments, and article 16 allows it to make decisions “relating to the internal organization and arrangements of the Council of Europe.” The CM meetings are held in private in Strasbourg “before and during the beginning of every session of the Consultative Assembly [which is now called the Parliamentary Assembly] and at such other times as it may decide.”[7]

The second organ was originally named the Consultative Assembly, which since February 1994 has been referred to in all Council documents as the Parliamentary Assembly of the Council of Europe (the PACE).[8] It is composed of the delegations of MPs from the legislatures of the contracting states, unlike the European Parliament of the EU which is elected directly by the population. The number of representatives accorded to each country is determined by a formula that is loosely based on population, giving the largest states the same number and the smallest states the same number. [9] Article 26 of the Statute currently assigns France, Germany, Italy, Türkiye, and the United Kingdom 18 representatives each. Other countries have between two and 12 representatives; for example, Liechtenstein has two, and Poland has 12 representatives. Article 22 describes the PACE as “the deliberative organ of the Council of Europe.” Its purpose is to debate issues and make recommendations to the CM. It also elects the judges of the European Court of Human Rights.

The Secretary General of the Council of Europe and his or her deputy are elected by the PACE upon the recommendation of the CM. The Secretary General appoints and manages the remaining staff of the Council of Europe which is composed of international officials who are responsible only to the Council and should be “uninfluenced by any national considerations” (article 36 (e) of the Statute).

Finally, the central element of the system of the human rights protection in Europe is the European Court of Human Rights. The competency and the structure of this court and its decision-making procedures will be examined in detail in the following sections.

4. The Convention for the Protection of Human Rights and Fundamental Freedoms – A General Overview

The first major treaty the Council produced after the Statute and the General Agreement on Privileges and Immunities was the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR).[10] The convention was signed on November 4, 1950, and came into force on September 3, 1953. It was the first real human rights treaty. The UN Universal Declaration of Human Rights was proclaimed during the Convention’s drafting process, but that was a proclamation, not a treaty.[11] While the Universal Declaration was intended to be universal and a declaration of ideals, the ECHR was intended to be a regional binding agreement. The Preamble’s reference to “European countries which … have a common heritage of political traditions, ideals, freedom and the rule of law…” indicates that one of the ECHR’s intentions is to delineate and embody the political and ethical culture of Europe.[12]

The ECHR had a preamble, laid out fourteen fundamental rights, and established two enforcement bodies: a European Commission of Human Rights and a European Court of Human Rights (the ECtHR or the Court). Most importantly, Article 46 (former Article 53) of the Convention provided that the contracting states must abide by the decisions of the Court.

The first section of the Convention sets out the particular human rights and fundamental freedoms that were to be protected.[13] The first 13 items (from Article 2 to Article 14), which appear in the original ECHR, were intended to restrain governments from tyrannizing the people. This was the result of the experience of totalitarian regimes which emerged on the continent in the first half of the XX century. Thus, the Convention embodies essentially the human rights of the “first generation”—the right to life and inviolability of person, liberty, freedom of speech, religion and assembly, fair trial, etc.

Article 15 restricts the scope of the contracting parties’ ability to derogate from the ECHR in times of emergency beyond the “extent strictly required by the exigencies of the situation.”[14] This provision requires the States to derogate by informing the Secretary General of the Council of Europe of its intentions to do so and sets conditions and limits to such derogation.[15]

Article 17 prevents abuse of right by those who rely on other Convention provisions—they should not use their rights and freedoms to destroy the very foundation of the Convention-based system of government. Its text is derived from Article 30 of the Universal Declaration of Human Rights and applies to State parties and private persons.[16]

Finally, Article 18 prevents the State to limit the rights guaranteed by the Convention for improper aims. This later Article aims to prevent the misuse of powers by States which could result in undermining the Convention aims under the pretext of lawful actions.[17]

Several additional protocols to the Convention adopted in the following decades either complemented it with additional substantive rights, or changed the mechanism of the Convention, amended the procedures before the Court, redefined its powers, etc. (see below).

5. Evolution of the European Convention Enforcement Mechanism Over Time

The Convention, in its original form, put in place a sophisticated enforcement mechanism: at its first level was the European Commission of Human Rights (liquidated in 1998); at the second, the European Court of Human Rights (changed overtime and still operating today). Both these institutions were tasked with the examination of complaints brought by private persons against member states; these institutions acted in essence as supra-national courts, developing, through interpretation, principles enshrined in the Convention. The Committee of Ministers also played an important role in the implementation of the Convention, although its role changed over time. The evolution of the Convention enforcement mechanism is described below.

5.1. The Right of Individual Petition

One of the great innovations of the Convention was Article 34 (former Article 25), which allowed “any person, non-governmental organization, or group of individuals” to file a complaint about a violation of his or her human right. Until the end of the Second World War, international law did not restrict the way a sovereign state could treat its own citizens. This has changed substantially. “The message of international human rights law is that how a state treats individuals subject to its jurisdiction is … a matter of international concern.”[18] Former Article 25 required that governments allow their own citizens to file complaints against them in the Commission (and, after 1998, directly in the Court).[19] Originally, the right of individual petition was optional, in the sense that each member state had to file a declaration of agreement with the Secretary General, and the provision did not come into effect until six member states agreed to it.[20] There was great disagreement within the Council over the inclusion of this provision in the Convention.[21] It took five years for six contracting parties to agree to it, and it finally came into force in 1955.[22] As we will see, it turned out to be a great success and became a true cornerstone of the Council of Europe’s human rights protection system.

Member states could also file applications: interstate applications were allowed by the former Article 24, which became Article 33 under Protocol no. 11 in 1998; individual applications were allowed by former Article 25 (now Article 34). Inter-State case applications have been relatively rare but returned to the spotlight after 2008, primarily due to the cases lodged against Russia* by a few states in the context of armed conflicts. As of April 2023, seven of the 15 cases pending before the Court are against Russia.

In the original version of the Convention, individuals, and private entities (NGOs, companies), had a right to complaint to the Commission, but were incapable of bringing the case further to the Court. This has changed in 1990 and reconfirmed in 1998 by Protocol no. 11 (when the Commission has been terminated): now the applicants have a direct access to the ECtHR.

5.2. The “Period of the Commission,” 1953–1998

The structure of the Convention institutions has changed several times since they were created in 1953. The first period (from 1953 until 1998, when the Commission was discontinued) was characterized by the coexistence of two human rights bodies:

• the Commission (a permanent body examining all incoming applications), and
• the Court (a part-time body deciding a small number of cases in periodic sittings).

This mechanism underwent the first major change in 1998 when Protocol no. 11 came into force. The European Commission of Human Rights (the Commission) was liquidated, and its functions were assumed by the ECHR.

In the original Convention, the Commission’s and the Court’s jurisdiction to examine individual complaints was optional. Former Article 25 of the ECHR provided that the member states could make a declaration accepting the jurisdiction of the Commission to examine individual complaints, and such declarations could be limited in time. Similarly, under former Article 46 the member states could make a declaration recognizing the jurisdiction of the Court, unconditionally, or on condition of reciprocity, or for a specified period (former Article 46 (2)). Member states progressively recognized the right of individual petition and the jurisdiction of the Commission and the Court. Finally, with entry into force of Protocol no. 11 in November 1998 the jurisdiction of the Court became a mandatory requirement for every member state of the Council of Europe, which means that now it is impossible to join the Convention without recognizing the jurisdiction of the Court.

The Commission’s purposes were to investigate into the complaints, to filter out clearly inadmissible applications, prepare reports on the merits of the cases and to mediate friendly settlements. Proceedings before the Commission were in camera.[23]

If a settlement was reached in a case declared admissible, former article 30 provided that the Commission would write a report consisting of a summary of the facts and a description of the settlement and send the report to the states involved, the Committee of Ministers (CM), and the Secretary General. If no settlement was reached, former article 31(1) provided that the Commission would write a report that included the opinion of the Commission on whether the Convention had been violated. The report was sent to the CM and the states involved in the dispute. If neither party appealed the decision to the ECtHR within three months, article 32(1) provided that the CM would decide whether there had been a violation.

If an application was admissible or there was no friendly settlement, the Commission itself and/or the State parties had another option – to refer the case to the Court which would deliver a judgment on the merits. Oral hearings before the Court were, as a rule, public. The Court was a sort of a second instance vis-à-vis the Commission, but, for the first decades of the existence of the Court, the individual behind the case could not address the Court directly, only the Commission could. This changed with Protocol no. 9 adopted in 1990, which gave the individuals and non-governmental organizations behind the applications the possibility to refer a case to the Court.

In the original design of the Convention the CM, which is essentially a political body, had two functions. In those cases which did not reach the Court the CM played a quasi-judicial role. While in the first years of the Convention the CM was more proactive, later it adopted a more passive stance, following the opinion of the Commission in nearly all cases,[24] and the Commission referred most important cases to the Court.[25] This adjudicative function was lost by the CM after the 1998 reform.

The second function of the CM was that of an enforcement body. Once the Court delivered its judgment in a case referred to it by the Commission or the State party that case would go to the CM for enforcement. The Court was capable, under former Article 50, to award “just satisfaction” to be paid by the member state to the successful applicant, if no appropriate reparations were available at the domestic level. However, the Court sometimes concluded that the finding of a violation constituted a just satisfaction.[26] The implementation of the Court’s judgements in some cases also required changes to the domestic legal order. Under former article 32 (4), all member states were bound to abide by the CM’s decisions.

Under former article 20, the Commission had the same number of members as there were member states. Members of the Commission acted in their own capacities, not as representatives of their governments.

Similarly, under old Article 38 the Court had the same number of judges as there were member states, and this rule still applies (current Article 20). Before the 1998 reform the Court sat at plenary meetings, not as a permanent body, and, under article 42, judges were to be paid by the day, because it was not expected that the caseload would be heavy enough to justify permanent employment or payment on a longer basis.[27] A chamber of seven judges would sit, including one judge sitting ex officio for the respondent State for each case.

5.3. Incremental Development of the Convention and Its Case Law

The “Commission” period is characterized by the gradual expansion of the jurisdiction of the Commission and the Court through:

• the adoption of the additional protocols to the Convention,
• a moderate growth of the ECHR case-law, and
• a steady increase in the visibility (and popularity) of the ECHR mechanism.

The expansion of the ECHR mechanism through amendments to its text started with the adoption of the First additional Protocol (E.T.S. No. 9), which was opened for signature even before the Convention came into force. It added rights to property, education, and free elections. Protocol no. 2, which came into force in 1970, conferred advisory jurisdiction on the Court. Only the CM could request advisory opinions, and those opinions could not address any question relating to “the content or scope of the rights or freedoms defined in Section 1 of the Convention …, or … any other question which the Commission, the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention”.

Protocol no. 2 was later integrated into the Convention in its present form as Articles 47, 48, and 49. Protocol no. 4 (E.T.S. No. 46) prohibited imprisonment for debt and guaranteed freedom of movement. Protocol no. 6 (E.T.S. No. 114) limited the death penalty to wartime. It was signed in 1983 and has been ratified or acceded to by all contracting parties except Russia*, which remained a member state until 2022 (all further references to Russia will be marked throughout the text with * as a reminder that it is no longer a member state of the Convention). But even in Russia*, the death penalty has not been applied since 1998, and the temporary moratorium on its application was made permanent by a judgment of the Constitutional Court in 2009.[28] The death penalty was finally abolished entirely by Protocol no. 13 (E.T.S. No. 187) on July 1, 2003 (which was ratified by nearly all member states, with few notable exceptions, like Russia*, Armenia and Azerbaijan). Protocol no. 7 (E.T.S. No. 117) added a right to appeal in criminal matters, compensation for wrongful conviction, the prohibition against double jeopardy, and equality of spouses.

Another avenue of the gradual expansion of the jurisdiction of the Convention bodies was related to the interpretative power of the Court and the Commission. During this period the Court adopted a number of important judgments, which laid theoretical foundations for the interpretation of the Convention and for the development of the Court’s case-law in the subsequent period.

The case-law of the Commission was also of relevance for defining the boundaries of the Convention, both procedural (related to the formal conditions of admissibility of complaints) and substantive (related to the scope of the rights protected thereby and possible limitations on these rights). Although during this period the Court and the Commission did not clearly formulate the doctrine of stare decisis, for practical reasons the Commission regarded the Court’s judgments as precedents, and at the end of this period the Court also has given weight to Commission precedent.[29]

In this period the Court adopted several seminal judgments that laid down the foundation for further development of its case-law. The Court defined principles of interpretation of the Convention, most importantly the concept of the Convention as “living instrument” which presupposes changing interpretation in the light of the present-day conditions and social norms (on this see more below, in Section 6.2) and the principle of subsidiarity, which was later incorporated in the Convention text by Protocol no. 15. It also addressed important substantive questions. To name just a few, the Court decided that the right to a fair trial implicitly contained the right of access to court;[30] that the special interrogation techniques applied in British detention centers during “troubles” in Northern Ireland amounted to “inhuman and degrading treatment” contrary to Article 3 of the Convention;[31] that long uncertainty about the status of the real estate destined for compulsory acquisition by public authorities violated the property rights of owners;[32] that unequal treatment of legitimate children and those born out of wedlock in inheritance matters was discriminatory;[33] that an ongoing trial should not prevent the press from discussing the subject-matter of this trial, which was of public interest;[34] that value judgments expressed by a journalist were not susceptible to proof;[35] that anti-sodomy laws in Northern Ireland violated privacy of consensual adults;[36] that right to life inherently comprised a positive obligation of the State to investigate deaths in the hands of the State’s agents,[37] etc.

Complaints had to meet certain requirements to be considered. The list of admissibility criteria evolved over time and will be discussed below, and the Commission’s case-law during this period contributed greatly to the proper understanding and development of the conditions of admissibility. In the beginning, the Commission followed a conservative line on the admissibility of applications, in order to build the trust of the governments, which were suspicious of the institutions of enforcement and the right of individual application in particular.[38] Indeed, the number of applications submitted declined in the first few years.[39] The culture of the Commission changed in the 1970s, and as the Commission admitted more applications, its credibility grew and the number of applications grew apace.[40] The jurisprudence on admissibility is still an important shield against inappropriate applications.[41] Nevertheless, both during the “Commission” period and after 1998 only a small fraction of applications were declared admissible and examined on the merits. Thus, between 1955 and 2000, 180,319 applications were filed, and only 6736 (3.7%) were found to be admissible.[42]

5.4. The Period of Protocol no. 11, 1998–2010: New Single Court

The second period which started in 1998 may be briefly characterized by the following elements:

• abolition of the Commission as an antechamber to the Court and creation of a single permanent Court;
• admission of new members to the Council of Europe, exponential growth of applications and, consequently, of the procedural delays and the backlog of cases;
• expansion of the Court’s case-law and its growing complexity.

To a certain extent, the Court became a “victim to its own success”, and many of the problems which the Court faced were the result of its growing popularity, especially in the new member states.

In addition to the Court and the Commission gaining more visibility through the development of its case-law, another major factor led to the immense increase in individual applications: the breakup of the Soviet Union and its satellites in Eastern Europe. After 1989, one communist government after another in Eastern and Central Europe collapsed and was replaced by a Western-style democracy.[43]

The newly free nations, including Russia* itself, sought membership in the Council of Europe and, after some discussion and requests for further reform, the Council admitted them. The standard for admission was article 3 of the Statute: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms …”.[44] The method was to provide “awareness-raising … assistance and cooperation, [and] integration” on subjects such as drafting constitutions and election laws, creating and operating constitutional courts, and other matters concerning democracy, human rights, and the rule of law. This work led to the founding of the Venice Commission, which is an arm of the Council and continues to give assistance to nations that request it.[45] The enlargement included states as far east as Moldova (admitted 1995), Russia* (admitted in 1996, and expelled in 2022 following the aggression on Ukraine – see below), Georgia (admitted 1999), and Azerbaijan (admitted in 2001). Between 1989 and 2007, 25 countries joined. The last country to join the Council of Europe was Montenegro (2007).

These key factors led to the growth of the number of incoming applications and the increase of the backlog of pending cases. The existing mechanism of two separate adjudicative bodies with overlapping functions was seen by many as overly complex and time consuming; the adjudicative function of the CM was criticized as incompatible with the political character of this body.[46]

In 1994, Protocol no. 11 (E.T.S. No. 155) was open for signatures. It entered into force in 1998. The first article of Protocol no. 11 replaced old Articles 19–56 of the Convention. It wrote the Commission of Human Rights out of the Convention entirely; made the ECtHR permanent; gave the Court the responsibility for pursuing friendly settlements; abolished the appeal of individual cases to the CM; made the judgments of the Court final; and restructured the Court into committees and chambers, including the Grand Chamber. The jurisdiction of the new permanent Court became mandatory. The CM, in the new system, only retained the competency to supervise over the execution of judgments of the Court.

The process through which complaints traveled from application to judgment under Protocol no. 11 could be outlined as follows. A judge rapporteur, “charged with presenting the case to the Court …,”[47] was assigned to each case. The rapporteur made a recommendation to a committee of three judges, who in turn made the decision on admissibility.[48] Only cases that were unanimously considered inadmissible were rejected; if at least one judge disagreed, the case was referred to a chamber for further examination (Article 28). Chambers had seven judges and reviewed individual cases for admissibility again. The chambers could declare the case inadmissible and reject it or declare it admissible and examine the case on the merits. Cases declared admissible and decided on the merits by a chamber could be referred by the parties to the Grand Chamber, which consisted of seventeen judges. The Grand Chamber would examine the judgment of a Chamber only in rare cases, where such judgement raises “serious questions concerning the interpretation or application of the Convention or its protocols, or … an issue of general importance”. The purpose was to ensure the quality and consistency of the Court’s case law by allowing for a re-examination of the most important cases.

However, despite the adoption of Protocol no. 11, the problem of backlog and delays was not solved. The addition of so many states in so short a time exacerbated the flood of cases facing the ECtHR.[49] While the Commission and the Court had given a total of 38,389 decisions and judgments in the 44 years up to 1998, the single Court has given 61,633 in the first five years. The numerical output of the single Court grew significantly, but the number of incoming cases increased disproportionately, leading to the accumulation of a growing backlog of cases, and longer procedural delays.[50] The Court’s annual report for 2003 noted that 27,281 applications were allocated to a decision body, 16,724 applications were declared inadmissible and 548 judgments on the merits were rendered that year.[51] Since at that time admissibility decisions were made by three-judge committees, one can see that the caseload was enormous. The situation continued to deteriorate by 2008, the court had started counting pending cases, of which there were 97,300.[52] Moreover, more and more judgments on the merits concerned so-called “repetitive cases” which related to well-known problems in the domestic legal orders (such as excessive length of legal proceedings or non-enforcement of certain types of domestic courts’ judgments). One can say that that the creation of the single Court did not solve the problem of delays and backlog, which was one of the main reasons for creating it.

5.5. Interlaken Process: 2010 to 2021

In 2004 Protocol no. 14, aimed at furthering the reform of the system, was agreed and opened for ratifications. The original purpose of Protocol no. 14 was to equip the ECtHR to deal with the landslide of cases by simplifying the procedures and reducing the workload of the Court. It was adopted among alarmist predictions that “if nothing is done to stem the flood of applications, the Strasbourg system is going to cave-in altogether”.[53]

The main features of Protocol no. 14 were the introduction of a new inadmissibility criterion of “no significant disadvantage” for the victim, and the streamlining of case-processing procedures, use of summary procedures to deal with straightforward applications.

Unfortunately, the application of these urgent measures was significantly delayed for political reasons: on February 18, 2010, Russia* became the last country to ratify Protocol no. 14, which finally came into force on June 1, 2010. To counter the blocking of the Protocol no. 14 by Russia and bring some temporary improvement to the situation, the Council adopted Protocol no. 14bis, which came into force on October 1, 2009. The Council set the number of signatories required for it to come into force at only three, so that it would come into force quickly. It entered into force for nine countries before it was supplanted by Protocol no. 14.

The process for human rights cases after 2010 is pictured in Figure 1 (see below in Section 6.1).

Inadmissibility decisions in individual cases are now made by a single judge (who cannot be the national judge of the country against which the application is directed), assisted by a rapporteur from the Registry, and are final. This is intended to release the manpower that was previously tied up by having committees of three judges examining inadmissible applications.[54] If the case is not declared inadmissible by a single judge, it is forwarded to a committee of three judges or a chamber of seven judges (Article 27 (3)). Committees may render a decision on both admissibility and the merits, but only in cases that concern subjects that are “already the subject of well-established case-law of the Court” (Article 28 (2)). In other words, committee judgments on the merits are limited to repetitive cases. Committee decisions must be unanimous and are final (Article 28). Applications that are not “already the subject of well-established case-law of the Court,” go to a chamber of seven judges, who adopt any decision by majority and with mandatory participation of the national judge from the country against which the application is directed (Article 29 (1)). The chambers’ decisions on individual applications will cover both admissibility and merits. Chambers also make the initial decision on the admissibility of interstate cases and may make decisions in those cases on both admissibility and merits.

Protocol no. 14 added one more hurdle to admissibility: applications may be found to be inadmissible if the applicant has not suffered a significant disadvantage unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal (Article 35). This criterion appears to give the Court some room in determining what is a “significant disadvantage.” In the first years after the entry of Protocol no. 14 into force the Court showed restraint in using this criterion even in relatively trivial cases.[55] It was further amended by Protocol no. 15, which took away the requirement of prior domestic consideration.

In September 2011 the number of pending cases had risen to a peak of 160,000; during 2012 it decreased to 128,000;[56] and by the end of 2014 it stood at 70,000.[57] In three years the number declined by 56%. As the Court itself said, “this means that Protocol 14 has been a success, above all … particularly as regards filtering … ”.[58]

Although the Court attributed these dramatic decreases primarily to the methods introduced by Protocol no. 14, a new version of Rule 47 of the Rules of Court had a role. That Rule sets the requirements for the contents of individual applications. Traditionally, the Court did not apply very strict rules to the content and language of the applications; new Rule 47 changed this approach so that the Court may now leave without consideration incomplete or overly lengthy applications or applications not sufficiently supported by documentary evidence.

The most recent version of Rule 47 came into effect on January 1, 2014.[59] The Court described the effects of the new Rule 47 as follows:

• the case – processing divisions have less correspondence to deal with;
• incoming applications are now better organized;
• properly completed application forms make it easier to analyze and process incoming cases;
• there is a significant gain of time enabling the Registry to deal with other meritorious cases.[60]

More efficient handling of repetitive and clearly inadmissible cases alleviated the situation to a certain extent. In essence, while before new Rule 47 the Court had to deal with a lot of incomplete applications, which was a waste of time and resources, now the function of filtering them out is performed by the Registry alone. This led to a visible drop in the applications the Court had to examine. However, this did not entirely solve another main problem of the Court, namely the backlog of meritorious and complex cases that remains beyond the Court’s capacity.[61]

Protocol no. 14 also allowed the Commissioner for Human Rights to participate in hearings (amended Article 36 of the ECHR). The Commissioner for Human Rights is position created in 1999 whose primary responsibilities are the promotion of human rights in Europe and the provision of support for national governments that wish to strengthen the protection of human rights by their courts or other institutions.[62] The Commissioner’s participation has the potential to add an objective and knowledgeable voice to the procedure. Since the introduction of this possibility, the Commissioner has taken part in several high-profile cases before the Court, concerning important issues of human rights protection in the individual countries and in Europe as a whole.

It quickly became clear that the measures provided by Protocol no. 14 were not sufficient. To advance the reform of the Court, a series of inter-ministerial high-level conferences on the future of the Court were held starting with the Interlaken Conference in 2010,[63] resulting in continued support of the Court’s work through the declarations adopted by the member states at these events. The latest such conference was held in Copenhagen in 2018.[64]

Adoption of Protocols nos. 15 and 16 was a result of an ongoing discussion at the Conferences about the future of the Court, the limits to its powers, judicial activism, and deference. Protocol no. 15 introduced reference to the “subsidiary role” of the Court and to the “margin of appreciation” of the member states to the Convention’s Preamble,[65] reflecting the growing concern of the member states with the activism (real or perceived) of the Court in interpreting the Convention, which became another imperative of the reform process, together with the need to solve the problem of the backlog. It also reduced the time within which an application must be lodged with the Court after a final national decision from six to four months. After the ratification by all member states, it entered into force on 1 August 2021.

2013 also saw the adoption of Protocol no. 16, which allowed the highest domestic courts and tribunals to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. Protocol no. 16 was optional and entered into force on 1 August 2018, after France—the tenth state—ratified and brought it in force.[66] Protocol no. 16 quickly proved an important tool for enhancing the dialogue between the high-level national courts and the ECHR.[67] By April 2023, 19 states have ratified the Protocol, six advisory opinions were rendered and one was rejected.[68] The role of advisory opinions is to provide assistance to Member states so as to avoid future violations, facilitate the correct interpretation of the Convention within national legal orders and, in this context, enhance judicial dialogue. In the process, it is hoped advisory opinions might alleviate the Court’s heavy workload.[69]

One of the ways to pursue this judicial dialogue embodied in Protocol no. 16 is the 2015 creation of the Supreme Courts’ Network (SCN) at the Court, following the encouragement to that effect in the Brighton Declaration.[70] The SCN is an operational-level structure for sharing Convention case-law knowledge and know-how, with the superior national courts.[71]

As already mentioned above, these conferences focused not only on the question of efficiency of the Convention system, but also on its relations with the national legal orders. Governments of some of the member states, like Russia*, for example, but also some Western European governments (most notably the United Kingdom) publicly criticised the Court for taking more power than was originally given to it by the Convention.[72] Some national higher and constitutional courts entered this dialogue, essentially implying in their decisions that some of the decisions of the ECtHR may be disregarded on constitutional grounds.[73] The ECHR, in response, reiterated that it has the ultimate power to interpret and apply the Convention.[74]

A new strategy for processing “impact cases” was introduced in 2021, in addition to the prioritisation policy which has been functioning since 2009 to speed up the processing and resolution of the most important, serious and urgent cases. These “impact cases” raise issues of great importance for the applicant and the respondent State or for the development of the Convention system in general. On January 1, 2022, more than 500 cases fell into this category, and concerned, for example, freedom of expression, the right to a fair trial, wiretapping and secret surveillance of journalists, pandemic cases, discrimination against sexual minorities, the right to information, and environmental nuisance.[75]

With the completion of the Interlaken process and the adoption of the two Protocols, the Court has, in the opinion of authoritative commentators, entered the “age of subsidiarity”.[76]

5.6. Discussions About Accession of the European Union to the European Convention

An important change introduced by Protocol no. 14 was the granting of permission to the European Union to accede to the ECHR.[77]

EU grew out of a purely economic union created in 1951 for the establishment of a common market for coal and steel, managed by joint institutions based on agreed policies.[78] Gradually, other European Communities emerged, which in 1993 transformed into the European Union based on the Maastricht Treatment. The agenda of the European Communities and, later, of the European Union (the EU), was primarily economic. However, eventually issues related to human rights began to appear in cases that came before the European Court of Justice (ECJ), which is the judicial arm of the EU (sometime called as the “Luxembourg Court”, to distinguish from the “Strasbourg Court”, i.e., the ECtHR). The Treaty on European Union of 1992 recognized the ECHR as reflecting general principles of law,[79] and the EU approved its own Charter of Fundamental Rights in 2000.[80] Finally, the Lisbon Treaty of December 1, 2009, which replaced the previous EU treaties and is now a sort of a European Constitution, in Article 6 paragraph 2 committed the Union to accede to the ECHR.[81]

Although it would seem natural for the EU to become a party to the ECHR, there are some potential consequences that might not be immediately apparent. Indeed, the explanatory report to Protocol no. 14 says that many of these consequences will have to be worked out and put into another protocol or an accession treaty.[82] Nevertheless it would seem that some are foreseeable.[83]

Despite Article 6 of the Lisbon Treaty, accession of the EU to the Convention mechanism has raised several questions due to the position taken by the ECJ. After the accession the position of the ECJ vis-à-vis the ECtHR will become somewhat analogous to that of national courts in relation to the Strasbourg Court at present. The questions of primacy in interpreting the human rights norms—which are often formulated similarly at the national level, in the Charter, and in the ECHR—may arise. On July 4, 2013, the European Commission and a number of the EU members requested an opinion from the ECJ on the compatibility of the Draft Treaty on accession of the EU to the Convention with the EU law. The Luxembourg Court’s decision, which was handed down on December 18, 2014, opined that the Treaty was not compatible with the EU law for a number of substantial reasons.[84] The ECJ opinion have been influenced by the principles that permeate the Draft Treaty on accession of the EU to the ECHR and was based in particular on the two main arguments: 1) issues of the EU law would be allowed to be ruled on by an external court, the ECtHR, and 2) the Draft Treaty would in many ways fail to maintain the cohesiveness and autonomy of the EU law.

These are issues that cannot be resolved without dedicating substantial time and effort to detailed negotiation between the EU and the Council of Europe. The Steering Committee for Human Rights (CDDH) resumed the negotiations in 2019, and work on the accession agreement continues. In March 2023 the CDDH examined the Report of the “46+1” Group on the Accession of the EU to the ECHR, noting “tentative agreements” reached in many areas of negotiations.

5.7. Latest Developments: Expulsion of Russia*

On the night of 24 February 2022, Russia* invaded Ukraine, bringing unspeakable suffering and destruction upon that country, continued at the time of writing. The political and diplomatic costs of this flagrant breach of the Council of Europe founding principles were enormous, too. Russia’s war of aggression caused “a tectonic shift in European history”, as noted by the European Council in its Versailles Declaration of 11 March 2022. The Council of Europe’s reaction was swift and firm: Russia’s membership was first suspended,[85] and then unanimously terminated on 16 March 2022 by the Committee of Ministers (CM).[86] On 22 March 2022 the Court adopted Resolution on the consequences of such cessation, applying Article 58 of the Convention that set a six-month transitional period during which the country remained fully bound by its Convention obligations. In September 2022 the plenary Court confirmed termination of Russia’s membership after 16 September 2002 and, consequently, termination of the position of the judge elected in respect of Russia.[87]

This brought about an unprecedented situation, as at that time Russia was the respondent state in about one fourth of all individual applications pending before the Court and several interstate applications, raising particularly important questions of jurisdiction and interpretation of the Convention.[88] The Court has gradually defined its approach to the treatment of the cases pending before it and falling withing its residual jurisdictions in a series of judgments and decisions adopted after 16 September 2022. Thus, it clarified the procedure to apply in the absence of the national judge in Chamber and Grand Chamber cases, addressed the issues of non-cooperation by the respondent State, and evidentiary rules. In doing so, it confirmed its jurisdiction to deal with the cases concerning the period when Russia was fully bound by the Convention obligations and reiterated that the Government’s failure to cooperate in the proceedings—essentially, by not submitting written observations—did not prevent the Court from examining the cases. The Court pointed out that even though Russia* had ceased to be a party to the Convention, it still has a duty to cooperate in the cases where the events had occurred before 16 September 2022 cut-off point.[89] Processing of the inter-State cases concerning Russia remained a top priority for the Court, and two important rulings have already been rendered in 2023: admissibility decision in Ukraine and the Netherlands v. Russia [GC] and Georgia v. Russia (II) (Article 41 – just satisfaction).[90] The Court also continued with the processing of the numerous cases falling under the well-established case-law, and thus not raising any new issues of jurisprudence.[91]

The CM adopted a similar approach, and continues to supervise execution of judgments rendered in respect of Russia*.[92] In accordance with paragraph 7 of Resolution CM/Res(2022)3, “the Russian Federation is to continue to participate in the meetings of the Committee of Ministers when the latter supervises the execution of judgments with a view to providing and receiving information concerning the judgments where it is the respondent or applicant State, without the right to participate in the adoption of decisions by the Committee nor to vote”. However, there has been no Russian participation in the CM Human Rights meetings after March 2022, and it is not expected that they will participate in the foreseeable future. The applicants and NGOs continue to supply information to the CM to ensure that the procedure remains ongoing and up to date. For example, on 7 March 2023 the CM held an exchange of views with representatives of Russian human rights NGOs, to obtain their views on the measures that could be relevant to execution of three groups of judgments and to better determine its own strategy in the face of the respondent state’s failure to engage.[93]

On 16-17 May the Council of Europe held the fourth summit in its history.[94] It was attended by a high number of the heads of states and resulted in several important statements. The declaration adopted at the summit reconfirmed the values on which the organization has been founded nearly 75 years ago.[95] Full support to Ukraine and its people, apart from declaration, was embodied in the creation of a novel international mechanism: an Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine, intending to constitute a comprehensive register to allow victims to submit their claims for damages, not only for destroyed property but also for injuries or even the death of family members. Other main topics of the summit included recommitting to the European Convention and the Court as the cornerstone of the Council of Europe’s protection of Human Rights and the call to further strengthen the international protection of the right to a healthy environment.

6. Resolution of Cases before the European Court

In this part we will pass from the historical description of the evolution of the ECHR system to the description of the current situation, institutional arrangements, and some major principles of interpretation of the Convention.

6.1. Procedure

The procedure before the ECtHR is regulated by the Convention, and, to a large extent, by the Rules of Court. The latter document is directly provided for by the Convention and allows the Court an autonomy in setting its own procedures and working methods, within the framework defined by the Convention.[96]

The procedure starts under Rule 47 of the Rules of Court, which allows the Registry to verify whether the application corresponds to the formal requirements (for example, contains a legible statement of facts and complaints, is duly signed, copies of relevant documents are joined, etc.). The requirements to the applications are set out in detail in the Practice Direction on Institution of proceedings.[97] Incomplete applications may be left without consideration by the decision of the Registry.[98] If all formal requirements have been duly complied with, the application is transferred to a judicial formation for the decision on admissibility.

Under Article 35 of the Convention, the Court may declare as inadmissible the following kinds of complaints:

• Anonymous complaints;
• Matters that had already been examined by the Court or those already submitted to another procedure for international investigation that contain no new information;
• Those where the applicants have not exhausted effective domestic remedies (the text of the Convention speaks of “all” domestic remedies which need to be exhausted, but the case-law of the Court and of the former Commission clearly interpreted this provision as requiring that only the effective remedies have to be exhausted);
• Complaints which had been filed four months after the last decision of the relevant domestic institution (note that until 2022 the time-limit for lodging the complaints was six months; the shortening of the time-limit was introduced by Protocol no. 15 and became effective in February 2022);[99]
• Those incompatible with the Convention (complaints about the situations which are not covered by one of the articles of the Convention on specific rights protected therein, situations which took place before the Convention entered into force or outside of the geographical area where the ECHR applies);
• Manifestly ill-founded complaints (which essentially means complaints which are not supported by evidence or not revealing even a plausible interference with one of the Convention rights);
• Complaints amounting to an abuse of the right of petition;
• Complaints in cases where the applicant did not suffer a significant disadvantage and where the interests of human rights do not require the continuation of the case.

The majority of applications are declared inadmissible by decision of a single judge; otherwise, an application is transferred for collegial examination by a committee of three judges if it falls under well-established case-law, or to the chamber of seven judges. Exceptionally important cases may be put before the Grand Chamber, comprising 17 judges.[100]

The Court’s website contains the following simplified scheme of processing individual applications:

Figure 1.

One question that often arises is the time that the Court takes to process applications. There are no fixed time limits, and terms vary depending on the nature and urgency of the complaint, respondent state and the procedure applied. In practice, the processing of clearly inadmissible applications by single judge formations is usually completed within several months under the “one in – one out” policy; cases falling under the well-established case-law and processed in the most simplified “fast-track” way may take up to one and a half – two years, while processing in full mode through the chamber and/or Grand Chamber takes years to complete.[101] Despite the extensive reforms described above and the significant progress in dealing with the masses of clearly inadmissible and clearly admissible applications, the Court’s dockets remain clogged with many cases that potentially raise important issues and are the result of non-enforcement of general measures required to address systemic issues. In 2023, five countries were responsible for about 70% of the Court’s entire caseload.[102]

6.2. Important Interpretation Principles

There are several principles that were not explicitly contained in the ECHR, but which were developed in the case-law of the ECtHR and which influence the evolution of the system.[103]

The first is subsidiarity, which sheds light on how the Court perceives its role vis-à-vis the domestic legal orders. Protocol no. 15 introduced, for the first time, the term in the Convention text, but the principle was inherent both in the text of it, and in the overall design of the Convention mechanism.

Subsidiarity, in general, means that any task that an organization undertakes should be done at the lowest level possible. Thus, the Court and the Convention are safety nets under the national legal systems that assure the people of those nations that they have recourse should their legal systems fail to afford them the rights of the ECHR. Article 1 gives responsibility to the contracting parties to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” Article 13 puts the burden on the contracting states to provide domestic remedies to citizens whose rights under the Convention have been violated. From a purely practical perspective, the Court is incapable of doing the work of all domestic courts. The “subsidiarity” principle is often referred to in the Court’s case-law, when the Court indicates that its task is not to replace domestic instances and not to second-guess, but to exercise residual control and ensure that domestic decisions are compatible with the principles of the Convention. It is present in the Convention jurisprudence since its early days: in the Belgian Linguistic Case in 1968 the Court first referred to the “subsidiary nature of the international machinery of collective enforcement established by the Convention.”[104]

The second, closely related, principle is the “margin of appreciation.”[105] It is essentially the deference the Court shows in relation to the member states’ interpretations of the particularities of their own legal systems, and in relation to their understanding of their social conditions and factual circumstances. The “margin of appreciation” left to the States is contextual, and its width is defined by many factors, like the public interest at stake: for example, in cases involving national security the States will enjoy a wider margin.[106] Another factor defining the “margin of appreciation” (and, hence, the extent of the Court’s deference to the national policies or decisions) is the existence of a pan-European consensus,[107] the quality of the domestic decision-making proceedings,[108] etc. It is particularly difficult for the Court to apply this principle consistently across legal systems that seem to defy comparison.[109]

Those principles rose in prominence in the recent decades, when the attacks from the member states on the Court for its overly intrusive and activist approach intensified. Protocol no. 15 introduced the “subsidiarity” and the “margin of appreciation” principles in the preamble of the Convention, serving as additional reminders to the Court from the member states about its functions vis-à-vis national legal orders.

Another foundational principle of interpretation of the Convention is that of proportionality. When the ECHR allows states to restrict a right, the state must do it only insofar as is necessary to achieve a legitimate goal. In some cases, the Convention explicitly allows such restrictions; in others the ECtHR has inferred them even though they are not in the text.[110] The second paragraphs of Articles 8 through 11 all allow some restrictions. For example, private and family life (protected under Article 8) may be interfered with, but only in accordance with the law and to the extent “necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” In the most general terms, proportionality is a “means-to-ends” test, aimed at ensuring that the acts of the State, even where they pursue a legitimate goal, should not limit individual rights and freedoms more than necessary to accomplish this goal, such as the exercise of the Convention’s rights by other individuals, the suppression of crime, etc.

Under the principle of “fourth instance,” the ECtHR is not an appellate court and applications to it are not appeals “from the decisions of national courts applying national law.”[111] The court will not second-guess “errors of fact or law allegedly committed by a national court unless or insofar as they may have infringed rights and freedoms protected by the Convention.”[112]

Two other concepts that are worth mentioning, contributed greatly to the development of the Court’s jurisprudence. The first is the concept of the Convention as a “living instrument”, and its dynamic interpretation in the light of the modern-day condition.[113] In essence, it means that the Court does not adhere to a strictly originalist interpretation of the Convention. On the other hand, “the Convention will not be interpreted to reflect change so as to introduce into it a right that was not intended to be included when the Convention was drafted”.[114] Some recent case-law show that the Court prefers to interpret the Convention rights in the light of the modern-day European consensus, rather than the ideas dominating at the moment when the relevant provisions were formulated and put in the Convention.[115] It should also be noted that the Court does not adhere strictly to the concept of precedent, but recognizes the need to maintain “coherence” of its case-law.[116]

Finally, the Court developed a theory of “positive obligations” which the States have under the Convention. “Positive obligations” require the States not only to withhold from certain actions vis-à-vis private person, but also to actively intervene in relations between private parties to ensure respect for certain human rights guaranteed by the Convention. Those “positive obligations” are contextual and are discovered by the Court on the case-by-case basis. Thus, the Court decided that the State should protect peaceful demonstrations from counterdemonstrators,[117] or provide legal framework for recognition of gender identity for transsexuals.[118]

6.3. “Just Satisfaction” and Enforcement

The Court may award “just satisfaction” to the parties “if the internal law of the High Contracting Party concerned allows only partial reparation to be made” (Article 41). This is supported by Article 46, which says: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” In other words, ratification of the Convention constitutes agreement to put the Court’s judgments into effect. “Thus, assumption of responsibility entails three obligations: the obligation to put an end to the violation, the obligation to make reparation …, and, finally, the obligation to avoid similar violations.”[119] “Just satisfaction” may be merely the judgment of the Court; a finding against a government may be enough to vindicate the applicant. On the other hand, the Court may also award monetary damages.[120] The Court has increased this practice over time to the point that one could now say that it is common.[121] Monetary awards are made for both pecuniary and non-pecuniary loss and may include the expenses of bringing the application plus back interest (when a government delays payment).[122] Awards for non-pecuniary damage made in connection with moral and physical suffering remain relatively modest, partly because the Court does not adhere to the concept of “punitive damages” and also because it has to take into account economic conditions in different member states.[123] The award of compensation remains a discretionary one and the Court may often decide that the finding of a violation is sufficient vindication for a breach of rights, or that the measures available domestically—most importantly, the possibility to seek reopening of the proceedings—would be the most appropriate vindication.[124]

Article 46(2) of the Convention gives the Committee of Ministers (CM) the responsibility for enforcing the Court’s judgments. If the government fulfills the requirements of the judgments or the parties come to a friendly settlement, the CM adopts a resolution accepting the government’s actions or the friendly settlement and stating that no further action is necessary.[125] Otherwise, the CM asks the government to submit information on the progress toward fulfillment and puts the issue on the agenda of its next human rights meeting.[126] Although the documents submitted to the CM are public, its deliberations are confidential. It may take any of the following actions: (1) attempt to bring the parties to a settlement, (2) adopt an interim resolution of concern, or (3) threaten to take action under Article 8 of the Statute, which allows the CM to end the government’s membership in the Council. No contracting party has yet been excluded from the Council on this ground. Since entry into force of Protocol no. 14, the Committee may also under Article 46(4) refer a question to the ECHR about whether a country has refused to abide by a final judgment.

This procedure has been launched, for the first time, in December 2017 against Azerbaijan, which for years failed to comply with the Court’s direction to release a political opponent, Mr. Ilgar Mammadov. In the meantime, Mr Mammadov was released. In 2019 the Court rendered the judgment[127] and determined that the State has not fulfilled its obligation under Article 46 (1) to abide by a final judgment of the Court.[128] Rendered in 2022, Kavala v. Türkiye is the second judgment in an infringement procedure for failure to abide by the Court’s final judgment explicitly indicating the need for an applicant’s immediate release.[129] In these two judgments, the Court set out the general principles relating to infringement proceedings and clarified certain matters concerning the roles of, and the institutional balance between, the Court and the CM: the nature of the CM’s right to launch such proceedings; the role of the explicit indication in the initial judgment of individual measures under Article 46; the need for the applicant to lodge a new application with the Court in respect of the State’s failure to execute the Court’s initial judgment; and the possibility of a parallel examination by the Court and the CM of the domestic proceedings triggered by that judgment.[130]

6.4. Compliance with the Court’s Judgments and with the Convention in General

It is difficult to evaluate the compliance by the contracting parties with the ECHR. As regards compliance with the Court’s judgments, the most reliable source of information here are the annual reports of the Committee of Ministers (CM).[131] Certainly the rate of compliance varies. Sometimes governments comply with a judgment quickly and completely; other times belatedly, incompletely, or not at all.[132] It is easier to assess payment of just satisfaction awards made by the Court. Here, with few notable exceptions (like the case of Yukos v. Russia which concerns the largest award of pecuniary damages against a member state),[133] the rate of compliance with the Court’s judgments is very high: for example, in 2017 over 70% of all individual payments were made on time[134]. The CM has developed a sophisticated system of monitoring and reporting on the execution of such payments, counting in dozens of millions of euros per year.[135] By contrast, it is more complicated to assess compliance with the “general measures” indicated by the CM following the Court’s judgments, i.e., those measures which require legislative amendments, changes to the case-law or administrative practices, etc.

It is even more difficult to assess compliance of a member state with the Convention principles in general, not in relation with the execution of judgments rendered against that particular country. Indeed, there are deep, inherent difficulties to any such assessment. There is an enormous variation in the cultures of the 47 members of the Council, and it is difficult for outsiders to assess how deeply those cultures have assimilated the values of the ECHR.[136] The same could be said of the structure and operation of the member states’ governments and legal systems. Finally, it is unclear what the most reliable or appropriate basis of any such comparison would be.

There are, however, some good reasons for concluding that compliance is relatively high. Although states have obvious, material interests in international economic, trade, and travel agreements, human rights agreements require governments to accept an obligation with no straightforward and/or immediate corresponding benefit to them (even though some long-term benefits may exist in terms of the country’s international reputation, investment climate, etc.). Indeed, agreement to the ECHR opens a government to potential complaints, embarrassment, and the payment of damages. In addition, although the contracting states are not required to incorporate the Convention into their national law, in practice they have all done so.[137] The efficacy of the Convention and of the Court is, therefore, often hidden in the guise of the ordinary workings of the contracting states’ legal systems.[138]

6.5. Pilot Judgments

In yet another change to try to improve its efficiency, the ECtHR has begun to use what is called the pilot judgment procedure. The Court explains it as follows: “The central idea behind the pilot judgment procedure is that where there are a large number of applications concerning the same problem, applicants will obtain redress more speedily if an effective remedy is established at national level than if their cases are processed on an individual basis in Strasbourg.”[139]

Pilot judgments are used in the case of repetitive applications that share a common root cause. The Court selects a particular case that appears to be reasonably representative of the entire group. It may adjourn the case during the adjudicatory process to give the contracting state time to remedy the situation. Although the duration of the adjournment may be prescribed at its beginning, the Court may restart the case at any time “if this is what the interests of justice require …”.[140] The ECtHR used the pilot judgment procedure for the first time in 2004.[141] Since then the Court rendered over thirty judgments labeled as “pilot”.[142]

Another peculiar feature of the pilot judgment is that in this category of cases the Court often makes recourse to Article 46 of the Convention, and, besides awarding just satisfaction, prescribes general measures which should be taken by the respondent Government to avoid similar violations in the future or settle other identical pending cases. While normally the task to indicate “general measures” belongs to the Committee of Ministers in the process of execution, in “pilot judgments” the Court often indicates such measures directly.[143] Recently, the Court concluded that the State’s continued failure to implement general measures ordered in the context of a pilot judgment may entail its decision not to deal with individual cases stemming from the same systemic problem. Thus, the Court sent over 12,000 cases back to the domestic authorities to ensure that deserving applicants received redress for the non-execution of domestic court judgments in the context of the execution of an earlier yet not implemented pilot judgment.[144]

7. Official Sources on the ECHR and Its Jurisprudence

The original Convention can be found in the United Nations Treaty Series in both Council of Europe’s official languages, English and French. The latest version of the Convention incorporates Protocols up to Protocol no. 15. The website of the COE’s Treaty Office includes a list of all the organization’s treaties. Entries in the list link to the text of the treaty; a summary of the treaty; a chart of signatures and ratifications; the list of declarations, reservations, and other communications;[145] and an explanatory report if there is one. The explanatory reports are wonderful aids to understanding the treaties.

The Court published its Judgments and Decisions from 1961 to 1996 as Series A and its Pleadings, Oral Arguments, and Documents from 1961 to 1988 as Series B. The Commission’s decisions on admissibility, reports and friendly settlements were published in its Decisions and Reports and selectively in the Yearbook of the European Convention on Human Rights. In 1996, the ECtHR changed the title and format of series A to the Reports of Judgments and Decisions.[146]

Currently the Court’s website provides a wide variety of texts. The search system that provides access to the HUDOC database includes all the following documents dating back to 1960, such as decisions, judgments, and advisory opinions of the Court, reports of the Commission, Resolutions of the Committee of Ministers, etc.

Since 2012 the Registry has added interfaces in languages other than English and French—including Turkish, Spanish, and Bulgarian. The Registry has also begun a project to translate cases that are important in the Court’s jurisprudence throughout the continent into the languages of countries in which knowledge of that jurisprudence is rare.[147] One can also find “communicated” cases—i.e., reports on complaints that have been communicated to the governments of countries against which they have been filed, although this section appeared in the HUDOC system only in 2006 and does not contain information on earlier communication reports. The Court also provides monthly Information Notes, which summarize cases of particular interest and include annual indexes to the cases.

In 2023 the Registry of the Court made public an important tool: the ECHR Knowledge Sharing platform (ECHR-KS). It groups regularly updated case-law guides on the articles of the Convention, as well as several documents on “transversal themes” such as social rights, terrorism, environment, etc.

8. The Expansion of Rights: Other Human Rights Treaties and Mechanisms

Although commentators regard the ECHR as the crowning achievement of the Council of Europe, the Council has adopted many other treaties that have developed human rights beyond their traditional core. These treaties have their own monitoring/enforcement mechanisms distinct from the Court’s system.

First among these instruments is the European Social Charter (ESC). The Charter was opened for signature on October 18, 1961. A major Additional Protocol was added in 1988 and other lesser amendments were added at various other times. The revised Charter was reissued as an autonomous treaty in 1996. The revised treaty incorporated the Additional Protocol of 1988, other amendments to the Charter, principles of other international social and economic treaties, and the principles of members’ domestic social and economic legislation. The Council of Europe devotes part of its website to the ESC, and this is an excellent place to find many of the documents that this section of the article describes.

The ESC has a preamble, six parts, and an appendix. The preamble makes clear that the Charter is an extension of the ECHR and that its purpose is to improve the “standard of living and … social well-being” of members’ populations. The ESC deals with economic and social policies that apply to groups of people within members’ societies, whereas the ECHR enumerates individual rights (although associations and compagnies may also apply to the ECtHR). The first part of the ESC consists of 31 brief policy statements that members pledge to pursue. They cover principles such as the right to work; the right of both labor and employers to organize; the right to the protection of health; the rights of persons with disabilities, the right of the family to social, legal, and economic protection; the right of elderly persons and children to social protection; and the right to housing. Although at first glance most of them appear to have to do with conditions of work, many deal with protecting the disadvantaged of all kinds. The second part amplifies the meaning of each of the policies stated in part I. Members are required to consider themselves bound to implement six items of their choice from a list of nine from part I; at least 16 other articles or 63 numbered paragraphs of their choice from part II; and to adopt “a system of labor inspection appropriate to national conditions”(Pt. III, Article A (1), (4)).

The ESC establishes a two-part system of supervision consisting of regular reports and collective complaints. The reports are submitted by the member states to the European Committee of Social Rights (ECSR), which consists of 15 members elected from five regions of Europe; before 1998 this was known as the Committee of Independent Experts.[148] Governments submit two types of reports on the ESC articles in part II: one on those they have ratified and another on those they have not ratified (the so-called procedure on non-accepted provisions) (Articles 21, 22). The process for submitting reports on ratified articles began as a fairly simple process but has become rather complex over time.[149]

After a thorough, substantive examination of these reports, which may include face-to-face meetings with representatives of the government concerned, the Committee issues its conclusions on whether the country submitting the report is in compliance with the articles that it has ratified. This function of the ECSR is quasi-judicial insofar as its conclusions have a particularly strong influence on subsequent actions taken. They are nevertheless not binding.[150] The ECSR has published its conclusions since 1969 (conclusions 2003–present available on the Council of Europe website).

As part of the Article 22 process, the ECSR commonly meets with representatives of the country concerned and often gives the government advice on how to meet the challenges preventing further implementation of the non-ratified articles. In a sense the Committee acts as technical advisors.[151] The report is then sent to the “national organizations of workers and employers,”[152] and relevant nongovernmental organizations.[153] The report and the responses thereto are then forwarded to the Governmental Committee, which is “the political consultative body to the Committee of Ministers.”[154]

The ECSR makes recommendations based on a substantive examination of the content submitted by the government.[155] The Governmental Committee re-examines the content, considers political factors, and then selects the cases that will be referred to the Committee of Ministers (CM).[156] Although the CM usually adopts the recommendations of the Governmental Committee, in few cases it has adopted the recommendations of the ECSR instead. While the CM resolutions are not binding, they do express weighty substantive and political opinions.[157]

The system of collective complaints was created by the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, which was opened for signature on 9 November 1995. The Protocol allows the following kinds of organizations to bring complaints against a state that has ratified, acceded to, or accepted it:

• International organizations of employers and trade unions referred to in paragraph 2 of Article 27 of the Charter;
• Other international non-governmental organizations which have consultative status with the Council of Europe and have been put on a list established for this purpose by the Governmental Committee;
• Representative national organizations of employers and trade unions within the jurisdiction of the Contracting Party against which they have lodged a complaint.[158]

There is a fourth kind of organization that can file a collective complaint: a representative national organization that has competence in the matters covered by the Charter and that the state has declared may file such complaints against it. The Subcommittee of the Governmental Social Committee (the Governmental Committee) to which section (a) refers may invite two employers’ organizations and two trade union organizations as observers with consultative status. The employers’ organizations must be representative; an individual employer such as a corporation cannot bring a collective complaint. The complaint must refer to the specific article and paragraph of the Charter that it alleges the state has not satisfactorily applied and indicate in what respect the application has not been satisfactory (Article 4). The complaint is transmitted to the ECSR, which may ask both the contracting party and the organization that has filed the complaint to submit information on its admissibility (Articles 5, 6). If it is admissible, the Committee asks the parties to submit written information relevant to the complaint and the other contracting parties to submit any comments they may wish. The ECSR also notifies international organizations of employers and trade unions referred to in paragraph 2 of article 27 of the complaint and invites them to submit observations. The Charter allows the Committee to hold a hearing after reviewing the documents (Article 7).

The ECSR then writes a report that describes its investigation and presents its conclusion. That report is sent to the party that made the complaint, the Committee of Ministers, and all contracting parties of the ESC (Article 8). The Committee of Ministers then votes on whether the state against whom the complaint was lodged applied the ESC satisfactorily. If the vote is against the party, the Committee of Ministers votes on a resolution that recommends the actions the defendant party must take to improve its application of the ESC. Only contracting parties to the ESC can vote, and the resolution must pass by a two-thirds majority (Article 9 (1)). If the report raises new issues, the contracting party may request that the Committee of Ministers consult its governmental Committee on those issues (Article 9 (2)). Only contracting parties may vote, and the resolution must pass by a two-thirds majority. The contracting party must include in its next regular report a description of the measures it has taken to improve its application of the ESC (Article 10).

Although the ECHR and the ESC described above have been the most important and influential human rights treaties of the Council of Europe, it has enacted more than 200 others.[159] These treaties cover an enormous array of topics such as the prevention of torture; the suppression of terrorism; child custody and visitation; the sexual exploitation and abuse of children; trafficking in human beings; the protection of the human being with regard to the application of biology and medicine; the protection of the European archaeological heritage; the money laundering, search, seizure, and confiscation of the proceeds from crime; the elaboration of a European pharmacopeia; and the compensation of victims of violent crime. These treaties have contributed to the legal cohesion of the states of Europe and have made that continent the most advanced in the world with respect to the protection of human rights and fundamental freedoms.

The sectoral treaties have their own enforcement mechanisms. For example, the Convention on preventing and combating violence against women and domestic violence (CETS No. 210), commonly known as the Istanbul Convention, established GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence). The Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides for the setting up of the CPT (the European Committee for the Prevention of Torture), an international committee empowered to visit all places where persons are deprived of their liberty by a public authority.

Besides treaties as such, the Council of Europe’s involvement with protection and promotion of human rights is manifold. Thus, the Human Rights Commissioner is mandated with fostering effective observance of human rights through dialogue with the Governments and the civil society, publication of reports and awareness-raising activities. The Venice Commission (the European Commission for Democracy Through Law) assists member states with drafting their laws and constitutions, also in relation to human rights issues. Some other monitoring mechanisms are not based on treaties but are established by the decisions of the Committee of Ministers, like, for example, the European Commission against Racism and Intolerance (ECRI), whose main task is to assist member states in developing their policies and legislation combatting racism, racial discrimination, xenophobia, antisemitism and intolerance from the perspective the ECHR and the case-law of the ECtHR. More information about sectoral human rights instruments and monitoring mechanisms can be found on the Council of Europe website, in the “Human Rights” section. In addition, all major bodies of the Council of Europe—the Parliamentary Assembly, the Committee of Ministers and the office of the Secretary General—are engaged with human rights issues to various extents.

9. Conclusion

The Council of Europe is nearly 75 years old. It has seen the reconstruction of Europe following World War II; the boom of the 1950s and ’60s; the Cold War and its end; the emergence of new independent nations, the growing popularity of the ECHR system and the expansion of its case-law, and attempts to increase the efficiency of its mechanism; and, finally, current dramatic events with the return of a full-scale war to the continent and the expulsion of Russia as a consequence of its aggression against Ukraine.

During its existence, the Council has been in the forefront of the establishment of human rights norms through binding treaties and non-treaty-based mechanisms and institutions. In most cases, when the European system of human rights protection is mentioned, the reference is made to the European Convention and the Court. This is, probably, the most successful, effective, and well-known international system of human rights protection. While it is going through an increasingly difficult period, the success of this system in the previous decades inspires some (albeit cautious) optimism about its future.

The latest summit of the Council of Europe, the fourth in its history, has concluded on 16-17 May 2023 with the Reykjavík Declaration: United around our Values. It took place in the shadow of the war in Ukraine, and of the “seismic consequences” of Russia’s exclusion from the Convention system in March 2022. The countries of the Council announced several measures to help war-ravaged Ukraine, and, most importantly, reaffirmed their continued “commitment to the European Convention on Human Rights and the European Court of Human Rights as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems”. Appendix IV to the Declaration developed this commitment, addressing the most pressing challenges before the Convention system, such as underlining Russia’s* duty to cooperate with the Convention bodies in the exercise of the latter’s’ residual jurisdiction, welcoming steps to conclude accession of the European Union to the Convention, underlining the fundamental importance of execution of the Court’s judgments, calling to ensure that the Court has sufficient resources to carry out its functions. The Council of Europe and the Convention system continue to go through a process of change and the outcome of the latest developments will, no doubt, have a profound impact on the European system of protection of human rights.

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[1] A.W. Brian Simpson, Human Rights and the End of Empire, 604 (2001).

[2] Id., 607–08.

[3] See D. Harris, M. O’Boyle, C. Warbrick, Law of the European Convention on Human Rights (1st ed. 1995), 2.

[4] Statute of the Council of Europe, preamble, May 5, 1949, 87 U.N.T.S. 103, E.T.S. Nos. 1, 6, 7, 8, 11

[5] Id., Article 1.

[6] Id., Articles 13, 14.

[7] Id., Article 21.

[8] Comm. of Ministers, Council of Eur., Decisions Adopted, app. 8: Denomination of the Parliamentary Assembly, Doc. No. CM/Del/Dec(94)508, at a27 (Feb. 23, 1994).

[9] See article 26 Statute of the Council of Europe.

[10] The current version is linked in the text (as amended by Protocol no. 15—see sub-section 5.4 below). Original version: Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.

[11] G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948).

[12] On the context and drafting history see, for example, The Conscience of Europe. 50 Years of the European Court of Human Rights, 16, Council of Europe, 2010.

[13] The current version of the ECHR guarantees the right to life, the prohibition of torture or inhuman or degrading treatment or punishment, the prohibition of slavery and forced labor, the right to liberty and security, the right to a fair trial, the prohibition of retroactive application of criminal laws, the right to respect for private and family life, home and correspondence, the right to freedom of thought, conscience, and religion, the right to freedom of expression, the right to freedom of assembly and association, the right to marry and found a family, the right to an effective remedy before a national authority for violations of the rights, the prohibition of discrimination. Additional protocols guarantee free elections, respect of property, and right to education (First Protocol), freedom of movement within a state and freedom to leave its territory (Fourth Protocol), abolition of the death penalty (Sixth & Thirteenth Protocols), protection from discrimination (Fourteenth Protocol) etc. See D. Harris, M. O’Boyle, C. Warbrick, Law of the European Convention on Human Rights (4th ed. 2018), Part III for an excellent explanation of the rights provided for in the text and the protocols to the Convention.

[14] For early application of Article 15 in the context of war and civil unrest, see Greece v. the United Kingdom, 1958, §§ 103 and following; Lawless v. Ireland (no. 3), 1961, § 15; Denmark, Norway, Sweden and the Netherlands v. Greece (the “Greek case”), Commission report, 1969, § 153; and Ireland v. the United Kingdom, 1978, §§ 202-207; and more recently, Georgia v. Russia (II) [GC], 2021, §§ 93 and 139. See, for general overview, Guide on Article 15 of the European Convention on Human Rights – Derogation in time of emergency, https://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf.

[15] On the latest use of derogations in the context of Covid health crisis, see Terheş v. Romania (dec.), 2021. See also K. Dzehtsiarou, Article 15 derogations: are they really necessary during the COVID-19 pandemic ? European human rights law review, issue 4 (2020).

[16] Ždanoka v. Latvia [GC], 2006, § 99, with reference to the preparatory work on the Convention; and, more recently, Zemour v. France (2022), §§ 22-28.

[17] Merabishvili v. Georgia [GC], 2017, §§ 303 and 306, and Navalnyy v. Russia [GC], 2018, § 164.

[18] S. C. McCaffrey, Understanding International Law, 252 (2006).

[19] M. W. Janis et al., European Human Rights Law, 26 (3d ed. 2008)

[20] Convention, supra note 27, Article 25.

[21] Janis et al., supra note 39, 15–19.

[22] Id., 21.

[23] E. Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights, 2010, 180.

[24] Ibid, Part II.

[25] N. Rowe and V. Schlette, The Protection of Human Rights in Europe after the Eleventh Protocol to the ECHR, European Law Review: human rights survey, 1998.

[26] See, for example, Golder v. UK, para. 46

[27] A.H. Robertson, The Council of Europe: Its Structure, Functions and Achievements, 41 (2d ed. 1961), 168.

[28] Library of Congress, Global Legal Monitor.

[29] V. Miller, Protocol 11 and the New European Court of Human Rights Research Briefing, 4 December 1998, House of Commons Library Research Paper 98/109, p. 16, with further references.

[30] Golder v. UK, paras. 36 and 40.

[31] Ireland v. UK, paras 168 and 174.

[32] Sporrong and Lönnroth v. Sweden, paras 67 et seq.

[33] Marckx v. Belgium, para. 48.

[34] Sunday Times (1) v. UK, para. 66.

[35] Lingens v. Austria, para. 46.

[36] Dudgeon v. UK, para. 60.

[37] McCann v. UK, para. 161.

[38] See E. Fribergh & M. E. Villiger, The European Commission of Human Rights, in The European System for the Protection of Human Rights 605, 619 (R. St. J. Macdonald et al. eds., 1993); C. Tomuschat, The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions, in The European Court of Human Rights Overwhelmed by Applications 1, 6–7 (Rüdiger Wolfrum & Ulricke Deutsch eds., 2009).

[39] See 41 Yearbook (Yearbook of the European Convention on Human Rights (1959–present)), 18.

[40] Tomuschat, supra note 81, 7.

[41] See generally K. Reid, A Practitioner’s Guide to the European Convention on Human Rights (6th ed., 2019), 8-12.

[42] ECtHR, Survey of Activities 70 (2000).

[43] Bates, supra note 47, 391 et suite.

[44] T. Niklasson & A. Sannerstedt, Europe Safe for Democracy? The Council of Europe and Democratization in Central and Eastern Europe, 96 Statsvetenskaplig Tidskrift 69, 70 (1993).

[45] Id., 72–76.

[46] Y. Klerk, Protocol No. 11 to the European Convention for Human Rights: A Drastic Revision of the Supervisory Mechanism under the ECHR, Netherlands Quarterly of Human Rights. Vol. 4/1, 35-46, 1996, 35.

[47] K. Reid, A Practitioner’s Guide to the European Convention on Human Rights (3th ed., 2007), 11.

[48] Id.

[49] Protocol no. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms: Explanatory Report, May 1, 2004, 5-6.

[50] Id.

[51] ECtHR, Annual Report 2003, 103–05 (2004).

[52] ECtHR, Annual Report 2008, 129 (2009).

[53] L. Caflisch, The Reform of the European Court of Human Rights: Protocol no. 14 and Beyond, Human Rights Law Review, Volume 6, Issue 2, 2006.

[54] Protocol no. 14 Explanatory Report, supra note 79, 38; P. L. McKaskle, The European Court of Human Rights: What It Is, How It Works, and Its Future, 40 U.S.F. L. Rev. 1, 62 (2005).

[55] See D. Spielmann, O. Chernishova, Examiner à la loupe le dérisoire? Examining futilities under the magnifying glass?, in Russia and the European Court of Human Rights: A Decade of Change. Essays in honour of Anatoly Kovler, Judge of the European Court of Human Rights in 1999-2012, 2013, 143-157.

[56] ECtHR, Annual Report 2012, 6 (2013).

[57] EctHR, Annual Report 2014, 5 (2015).

[58] Id. See also Reid, supra note 84, 12. Filtering is the process of deciding on prima facie admissibility of applications.

[59] EctHR, Report on the implementation of the revised rule on the lodging of new applications, 2 (Feb. 2015).

[60] Id., 3.

[61] See the Declaration of the High Level Conference meeting in Copenhagen on 12 and 13 April 2018, 42 et seq.

[62] Pursuant to Article 1, Resolution Res (99)50 of the Committee of Ministers, 7 May 1999, the Commissioner shall be a non-judicial institution to promote education in, awareness of and respect for human rights. He shall respect the competence of and perform functions other than those fulfilled by the supervisory bodies set up by the Council of Europe under its human rights instruments. Under Article 13 of the Resolution, he shall contribute to the effective observance and full enjoyment of human rights in the member states.

[63] See the Interlaken Declaration, adopted by the High-Level Conference on 19 February 2010.

[64] See information about the conferences and the relevant documents in the section “Official text” – “Conferences”.

[65] See the Declaration of the High Level Conference meeting in Copenhagen on 12 and 13 April 2018 at the initiative of the Danish Chairmanship of the Committee of Ministers of the Council of Europe.

[66] See information on signatures and ratifications.

[67] M. Kučera, Advisory jurisdiction under Protocol no. 16 to the Convention, 70th anniversary of the European Convention on Human Rights, Ed. P. Šturma, A. Tymofeyeva (eds.) et al. – Waldkirchen : rw&w Science & New Media, 2021, 151-161.

[68] For procedure, see Guidelines on the implementation of the advisory-opinion procedure introduced by Protocol no. 16 to the Convention (approved by the Plenary Court on 18 September 2017, last amended 18 October 2021.

[69] S. O’Leary and T. Eicke, Dialogue between judges 2019.

[70] See the Brighton Declaration p. 12 (c), 2012, and the Brussels Declaration (action plan, p,. 1 (b)), 2015

[71] Launch of network for the exchange of case-law information with national superior courts, ECHR Press release 298 (2015).

[72] A. Donald, J. Gordon and P. Leach, The UK and the European Court of Human Rights, Equality and Human Rights Commission, Research report 83, 2012.

[73] See Part IV: Perspectives from Other Jurisdictions: Contrasts and Comparisons with the UK Experience, in The UK and European Human Rights: A Strained Relationship?, ed. K. Ziegler, L. Wicks, L. Hodson, Hart Publishing Oxford, 2015; C. Dieffal, Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts? An Inquiry into the Judicial Architecture of Europe, in The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (edx.H.P. Aust, G. Nolte), Oxford, 2016, 185-188.

[74] The Court’s Opinion on the draft Copenhagen Declaration, February 2018, p. 4.

[75] Press conference of the President of the European Court of Human Rights, January 2022.

[76] R. Spano, The future of the European Court of Human Rights: subsidiarity, process-based review and the rule of law, Human rights law review, vol. 18, no. 3 (2018), 473-494.

[77] Article 59, paragraph 2 of the Convention as amended by Protocol no. 14.

[78] S. Henig, The Uniting of Europe, 27 (2d ed. 2002).

[79] Treaty on European Union, Article F(2), July 29, 1992, 1757 U.N.T.S. 3, 12.

[80] Charter of Fundamental Rights of the European Union, Dec. 18, 2000, 2000 O.J. (C364) 1.

[81] See Article 6 paragraph 2 of the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2012/C 326/01.

[82] See Protocol no. 14 Explanatory Report, supra note 79, 101.

[83] See generally Harris et al., supra note 31, 34-5; Joint Statement Issued by the Presidents of the Two European Courts, 2011.

[84] Opinion Pursuant to Article 218(11) TFEU, CJEU Case C-2/13 (Dec. 18, 2014).

[85] Decision of the Council of Europe to suspend the Russian Federation from its rights of representation in the Council of Europe in accordance with Article 8 of the Statute of the Council of Europe (25 February 2022).

[86] Resolution CM/Res(2022)2 Cessation of the membership of the Russian Federation to the Council of Europe.

[87] Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe considering Article 58 of the European Convention (22 March 2022) and Resolution of the European Court of Human Rights taking note that the office of the judge in the Court with respect to the Russian Federation would cease to exist on 16 September (5 September 2022).

[88] Analysis of statistics 2021 (January 2022), p. 8.

[89] Fedotova and Others v. Russia [GC], 17 January 2023; Ukraine and the Netherlands v. Russia [GC], 25 January 2023; Kutayev v. Russia and Svetova and Others v. Russia, 24 January 2023.

[90] Georgia v. Russia (II), no. 38263/08, 28 April 2023.

[91] Latest rulings by the European Court set out the procedure for future processing of applications against Russia, Press release ECHR 036 (2023).

[92] See CM decision on cases pending against the Russian Federation CM/Del/Dec (2022)1436/A2a and Strategy paper regarding the supervision of the execution of cases pending against the Russian Federation, CM/Inf/DH(2022)25.

[93] C. Ovey, presentation at Seminar “Binding Force: Institutional Dialogue Between the ECHR and The Committee of Ministers under Article 46 of The European Convention on Human Rights”, 23 March 2023.

[94] For a history of summits and expectations and challenges to the fourt one, see A. Donald, P. Leach, Responding to seismic change in Europe: the road to Reykjavik and beyond; in Special Issue: The Road to Reykjavik and beyond, European Human Rights Law Review, 2 (2023).

[95] Reykjavík Summit of the Council of Europe: United around our values. Reykjavík Declaration, 17 May 2023.

[96] See Article 55 of the original Convention text, which provided that the Court shall “draw its own rules and… determine its own procedures”; currently Article 26 (d): “The Plenary Court shall… adopt the Rules of the Court”.

[97] Practice direction supplementing Rules 45 and 47, issued by the President of the Court in accordance with Rule 32 of the Rules of Court, on 1 November 2003, last updated on 1 February 2022.

[98] In 2022, the Court has thus disposed “administratively” of about 14,400 applications; in 2021 – of 16,500 (see Annual report, 2022).

[99] The time-limit for applying to the European Court of Human Rights is four months from the date of the final domestic decision, Press release ECHR 032 (2022).

[100] In 2022, the Court allocated 45,500 applications to a judicial formation; declared inadmissible 31,300 applications; delivered about 4,200 judgments and about 4,900 decisions to strike out or to settle; and had 74,650 applications pending by the end of that year. See Annual report, 2022.

[101] For an excellent review of the Court’s latest policies in respect of filtering and processing of clearly inadmissible or clearly admissible applications, see H. Bakirci, Case Management: European Court of Human Rights (ECtHR), Max Planck Encyclopaedias of International Law (2019).

[102] Annual report 2022, 142.

[103] See generally, J. Gerards, General Principles of the European Convention on Human Rights, Cambridge UP 2019; and A. Nussberger, The European Court of Human Rights, Oxford University Press, 2020.

[104] Belgian Linguistic case (merits), para. 10 in fine.

[105] First developed in Handyside v. UK, pars 48-49.

[106] Harris, supra 31, 14-18.

[107] For an in-depth study of the role of the European consensus in the Court’s jurisprudence, see K. Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights, Cambridge University Press, 2015.

[108] Animal Defenders International v. UK, para. 116.

[109] R. St. J. Macdonald, The Margin of Appreciation, in The European System for the Protection of Human Rights, supra note 81, 83.

[110] J. McBride, Proportionality and the European Convention on Human Rights in The Principle of Proportionality in the Laws of Europe (ed. Ellis), 1999, 23

[111] Harris et al., supra note 31, 18.

[112] Id. (quoting Garcia Ruiz v. Spain, para. 28).

[113] R. Lawson, A Living Instrument: The Evolutive Doctrine – Some Introductory Remarks, in The European Convention on Human Rights: Living Instrument at 70, Dialogue between judges, European Court of Human Rights, Council of Europe, 2020.

[114] Harris et al. (1st ed.), supra note 21, 8.

[115] See Bayatyan v. Armenia, on the question of whether the freedom of religion comprises the right to an alternative civil service for conscientious objectors, paras. 98 et seq.

[116] See Chapman v. UK [GC], para. 70.

[117] See Plattform “Ärzte für das Leben” v. Austria, para. 32

[118] See a description of the development of the Court’s case-law on positive obligations of the State vis-à-vis the transsexuals in R. White and C. Ovey , The European Convention on Human Rights, Oxford, (8th ed) 2020, 244-46.

[119] E. Lambert Abdelgawad, The Execution of Judgments of the European Court of Human Rights, 10 (Human Rights Files, No. 19, 2d ed. 2008), O. Ichim, Just Satisfaction under the European Convention on Human Rights (Cambridge University Press), 2015.

[120] It did so for the first time in 1974 in Neumeister v. Austria.

[121] See for a discussion of monetary awards in different cases, S. Altwicker-Hámori, T. Altwicker and A. Peters, Measuring Violations of Human Rights: An Empirical Analysis of Awards in Respect of Non-Pecuniary Damage under the European Convention on Human Right, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 76 (2016). pp. 1-51; and V.Fikfak, Changing State Behaviour: Damages before the European Court of Human Rights, EJIL, vol. 29, no. 4, 2018.

[122] Harris et al., (4th ed.), supra note 31, 162-70.

[123] See the Rules of Court, Practice direction on just satisfaction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007, amended on 9 June 2022, 2 and 3.

[124] Harris et al., (4th ed.), supra note 31, 163.

[125] Council of Eur., Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements (May 10, 2006).

[126] Lambert Abdelgawad, supra note 127, 33.

[127] Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, 29 May 2019.

[128] See Annual report, 2020, 101-104.

[129] Kavala v. Türkiye (infringement proceedings) [GC], no. 28749/18, 11 July 2022. The Court considered that the measures indicated by Türkiye did not permit it to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment.

[130] Unfortunately, that judgment also remained unenforced, and at the time of writing the applicant remained in prison, condemned to life imprisonment in 2022. See communications from the applicant February 2023, DH-DD(2023)202.

[131] See, for example, Supervision of the Execution of Judgements and Decisions of the European Court of Human Rights 2022 with further references to the specific countries in the HUDOC Exec system.

[132] Janis et al., supra note 39, 105 n. 90, 109.

[133] The case concerns the payment of largest pecuniary award ever awarded by the Court – nearly 2 bln euros. On 28 November 2017 the Russian authorities provided information that a payment of the legal costs and expenses awarded in the case had been organized; the payment of the remaining sum appears to be blocked by the ruling of the Russian Constitutional Court of 2016. For a detailed examination of this situation, see the Committee of Ministers documents CM/Del/Dec(2017)1280/H46-26 and DH-DD(2017)1342.

[134] See Annual Report of the Committee of Ministers 2017, 14.

[135] Memorandum Monitoring of the payment of sums awarded by way of just satisfaction: an update of the overview of the Committee of Ministers’ practice, CM/Inf/DH(2021)15.

[136] H. Keller and A. Stone Sweet, Assessing the Impact of the ECHR on National Legal Systems in A Europe of Rights (eds Keller and Stone Sweet, 2008), 695-701.

[137] Harris et al., (4th ed.), supra note 31, 29-32.

[138] Janis makes the point that most of the enforcement of international law in general occurs within national legal systems: “When a treaty provision or a customary international law or any other international law norm is used as a rule of decision by a municipal court or administrative agency, international law has all the efficacy that a municipal legal system can muster.” Janis et al., supra note 39, 112.

[139] ECtHR, The Pilot-Judgment Procedure, 6 (2009).

[140] Id., 5.

[141] See Broniowski v. Poland.

[142] For more on pilot judgments see N. Vajić and G. Dikov, Pilot judgments and class actions: what solution for systemic violations of human rights?, in Russia and the European Court of Human Rights: a decade of change, O. Chernishova, M. Lobov (eds.), Wolf Legal Publishers, 105-121.

[143] See Suljagić v. Bosnia and Herzegovina, paras. 60 et seq.

[144] See Burmych v. Ukraine [GC].

[145] For information on ways that states can condition their acceptance of treaties, see Mark W.

Janis, An Introduction to International Law 23–26 (4th ed. 2003); 1 Oppenheim’s International

Law 1188–92, 1240–47 (R. Jennings & A. Watts eds., 9th ed. 1992).

[146] The opinions themselves can be found in the ECtHR Publications, Series A: Judgments and Decisions (1961–1996) and ECtHR, Reports of Judgments and Decisions (1996–present). The Yearbook, supra note 65, published summaries of the decisions and judgments. Pleadings, transcripts, and other documents filed with the court can be found in Publications of the European Court of Human Rights, Series B: Pleadings, Oral Arguments, and Documents (1961–1988).

[147] Eur. Court of Human Rights, Annual Report 2013, at 67 (2014).

[148] See A. M. Świątkowski, Charter of Social Rights of the Council of Europe, 377–78 (2007).

[149] An excellent explanation of the past calendars and future schedules through 2011 can be found in Świątkowski, supra note 159, 379–82.

[150] Id., 378–83.

[151] Świątkowski, supra note 159, 383–84.

[152] Id., 384.

[153] There are two types: national nongovernmental organizations and specialized international nongovernmental organizations that have consultative status to the Council of Europe.

[154] Świątkowski, supra note 159, 385; Council of Eur., Governmental Committee.

[155] Świątkowski, supra note 159, 383–84.

[156] Id., 386.

[157] Id., 388.

[158] Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Nov. 9, 1995, 2045 U.N.T.S. 224, art. 1.

[159] Council of Eur., Complete List of the Council of Europe’s Treaties (last visited July 27, 2010).