UPDATE: The European Human Rights System

By Grigory Dikov

Grigory Dikov is a former law clerk at the European Court of Human Rights (2003-2014). He is currently a legal officer at the Venice Commission of the Council of Europe and a Ph.D. researcher at the Law School of the University of Liverpool (UK).

NOTE: This article is a substantial re-write of the original by James W. Hart.

Published July/August 2018

(Previously updated by James W. Hart in June 2015)

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1. Introduction

This article presents historical, organizational, and bibliographic information for researching the Council of Europe’s regulation of human rights within its region. It is intended primarily for researchers who need a general overview of the European Human Rights system. It may also be useful for librarians who need an understanding of the bibliographic structure of Council of Europe documents. It was written from a historical perspective. Indeed, one cannot fully understand the Council of Europe, the changes it has been through since its inception, or its literature, without understanding the forces that spawned it and have influenced it. The article 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 (ECHR), principles of the Convention’s interpretation, the procedures of the European Court of Human Rights (the ECtHR or the Court), compliance with the court’s judgments, and the expansion of the idea of human rights in other treaties. It also explores recent challenges faced by the European human rights system and possible answers to them.

2. The Context

2.1 Europe in Ruins

In 1945, Europe was economically, spiritually, and physically devastated. Nearly all of its countries had recently been or currently were occupied by foreign armies. Thirty-six and a half million Europeans had died in the war.[1]

The Soviet Union lost 16 million civilians and 8.6 million military men and women.[2] There were thirteen million displaced persons in Europe in the summer of 1945.[3] Germany, for example, contained over ten million people who were imported from conquered nations and forced to work there.[4] Three and a half million homes in greater London, ninety percent of homes in Warsaw, and twenty percent of homes in France had been destroyed.[5] In 1946, the total steel output of Europe was only fifty-five percent of that of 1937.[6] At the end of the war, the railroads in some countries were half the size they had been at its inception.[7] “Production of wheat and other bread-grains was down by a third.”[8] In the American-occupied zone of Germany, the food ration was 860 calories per day.[9]

2.2 The Conflict Transforms

Gradually, however, another conflict emerged between the Western allies and the Soviet Union. A line that ran roughly southeast from the Baltic Sea in the north to the Adriatic in the south divided the continent. To the north and east of the line were the armed forces of the Soviet Union and other socialist countries. To the west were the armed forces of the United States and other NATO powers. This division was more the result of geography and military strength than agreements made among Roosevelt, Churchill, and Stalin.[10] As Stalin said, “This war is not as in the past; whoever occupies a territory also imposes upon it his own social system.”[11] The war with Germany had merely forced a temporary alliance of necessity on nations that had a long history of mutual suspicion.

The countries of Eastern Europe were caught in the middle. Great Britain and the United States had agreed to allow Stalin to dominate that region.[12] Under Stalin’s direction, the native Communist parties allied with socialist parties to get a place in the government. Once taken into the government, the communists then had fellow communists appointed to head the ministries of the army, the police, and the judiciary. In the final stage, the communists arrested the leaders of their putative political allies, closed their newspapers, outlawed them entirely, executed the leaders, and took the government by force.[13] The process was a long one. The last nation to fall to communist intrigues was Hungary, where the Workers’ Party decisively won the election in May of 1949.[14]

2.3 Precursor to Cooperation

The Western European countries had to stand alone with the horrors of war behind them and the horrors of Stalin in front of them. History was pushing them toward cooperation. Each of them had its own idea of the kind and manner of cooperation that would benefit Western Europe the most.[15] A plethora of organizations supporting the idea of cooperation grew up in response to these forces, e.g., the European Union of Federalists, the United Europe Movement, and the Independent League for European Cooperation.[16] Several of the most important of these organizations held a “Congress of Europe” in The Hague in May of 1948.[17] Churchill, who in September 1946 called for “a kind of United States of Europe,”[18] was honorary president.[19] 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.[20]

3. The Council of Europe

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 . . . ”.[21] Article 1 states that the Council’s purposes 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.”[22]

The organization is governed primarily by the Committee of Ministers, which consists of the foreign ministers of the contracting states or their designated substitutes.[23] Article 14 gives each contracting state one representative, and each representative has one vote. Article 15 gives the Committee 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.” It has an executive function similar. The Committee’s meetings are held in private in Strasbourg “before and during the beginning of every session of the Consultative Assembly and at such other times as it may decide.”[24]

The second organ was originally named the Consultative Assembly, but since February 1994 has been referred to in all Council documents as the Parliamentary Assembly.[25] It is composed of representatives selected by or appointed from the legislatures of the contracting states. 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.[26] Article 26 of the Statute assigns France, Germany, Italy, Russia, Turkey and the United Kingdom eighteen representatives apiece. Other countries have between twelve and two representatives, for example Austria has six, Estonia three, Liechtenstein two, Poland twelve, and Moldova five. Article 22 describes the Assembly as “the deliberative organ of the Council of Europe.” Its purpose is to debate issues and make recommendations to the Committee of Ministers. Its power resides in its ability to represent the views of the citizens of the contracting states, not in its authority to decide anything. It appears to have the debating function of a legislature and the advisory function of a cabinet.

4. The Convention for the Protection of Human Rights and Fundamental Freedoms

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 (ECHR).[27] 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 U.N.’s Universal Declaration of Human Rights[28] was proclaimed during the Convention’s drafting process, but that was a proclamation, not a treaty. It bound no one – at least not explicitly. 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, former Article 53 of the Convention provided that the contracting states must abide by the decisions of the Court.

The ECHR’s preamble states clearly that the purpose of the ECHR was “to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration...” 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 Western Europe.

The first section of the Convention sets out the particular human rights and fundamental freedoms that were to be protected.[29] The first thirteen 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. “[O]utside the actual zones of combat the worst brutalities inflicted on individuals were likely to be inflicted by their own government, operating through fellow citizens.”[30] Thus, the Convention embodies essentially the human rights of the “first generation” – right to life, liberty, freedom of speech, freedom of 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.” 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. Finally, Article 18 prevents the State to limit the rights guaranteed by the Convention for improper aims.

5. Convention Enforcement Mechanism: Three Periods

The Convention 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 (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.[31] The Committee of Ministers of the Council of Europe 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 Period of the Commission, 1953–1998

The structure of the Convention institutions has changed since they were created in 1953.[32] They underwent the first major change in 1998, when the European Commission of Human Rights (the Commission) was liquidated and its functions were assumed by the European Court. The second period of major reforms started in 2010.

The first period (1953-1998) was characterized by the following:

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.[33] Under article 20 of the Convention, the Commission had the same number of members, as there were member states. Article 23 required the members of the Commission to act in their own capacities, not as representatives of their governments. The Commission was discontinued and its functions given to the Court in 1998 by Protocol 11.[34]

One of the great innovations of the Convention was article 25, which allowed “any person, non-governmental organization, or group of individuals” to file a complaint with the Commission. Until the end of World War II, 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.”[35] Article 25 required that governments allow their own citizens to file complaints against them in the Commission.[36] Each member state had to file a declaration of agreement to article 25 with the Council’s Secretary-General, and the provision did not come into effect until six contracting states agreed to it.[37] There was great disagreement within the Council over the inclusion of this provision in the Convention.[38] It took five years for six contracting parties to agree to it, and it finally came into force in 1955.[39] 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.

The process through which complaints, under the old system, traveled from application to judgment is as follows:

Both States and individuals could file applications: interstate applications were allowed by article 24, which became article 33 under Protocol 11 in 1998; individual applications were allowed by article 25 (now article 34). The interstate case mechanism has been used relatively rarely.[40]

Complaints had to meet certain requirements in order to be considered. Articles 26 and 27 of the original Convention indicated that the following kinds of complaints were inadmissible:

The jurisprudence on admissibility is still an important shield against inappropriate applications.[42] Between 1955 and 2000, 180,319 applications were filed, and only 6736 (3.7%) were found to be admissible.[43]

If a settlement was reached in a case declared admissible, 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, and the Secretary-General of the Council. The case would then be removed from the list. If no settlement was reached, article 31(1) provided that the Commission write a report that included the opinion of the Commission on whether or not the Convention had been violated. The report was sent to the Committee of Ministers 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 Committee of Ministers decide whether or not there had been a violation.

Thus, in the original design of the Convention the Committee of Ministers (which is essentially a political body) performed a quasi-judicial function. While in the first years of the Convention the Committee of Ministers played a pro-active role, later it adopted a more passive stance, following the opinion of the Commission in nearly all cases.[44] This adjudicative function was definitely lost by the Committee of Ministers after the 1998 reform.

The Committee could also require the violating state to compensate the victim for the violation and to correct, within a certain period, that aspect of its legal system that had led to the violation (Article 32 (2)). If the violating state did not take the prescribed action in time, the Committee decided, “what effect [should] be given to its original decision” and published its report (Article 32 (3)). Under article 32 (4), all the contracting parties to the treaty were bound to abide by the Committee’s decisions.

In addition to the Committee of Ministers’ power to define reparations in cases referred to it, 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 in itself constitutes a just satisfaction.[45]

The Committee’s jurisdiction was the default; the Court’s jurisdiction was optional (it is now a mandatory requirement for every member-State of the Council of Europe). Agreement to the Court’s jurisdiction could be accepted “unconditionally or on condition of reciprocity on the part of several or certain other High Contracting Parties or for a specified period” (Article 46 (2)). Countries could accept the court’s jurisdiction by filing a declaration with the Secretary-General (Article 46 (3)). And article 46(1) limited jurisdiction of the Court to the interpretation and application of the Convention, which is still the case today (see Article 32 (1)).

Article 38 assigned the Court the same number of judges as there were member states, and this rule still applies (Article 20 of the current Convention). 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.[46] A chamber of seven judges would sit, including one sitting ex officio who was a “national of any State party concerned ...” for each case. Only the Commission or a contracting state could bring a case before the court (Article 48). Article 51 required the court to write an opinion for each case, and article 52 made that opinion final. Article 54 gave the Committee of Ministers the responsibility to supervise the execution of the judgment.

5.2 Changes to the ECHR: Incremental Development of the Court’s Case-Law

Over time, the Convention changed. The First additional Protocol (E.T.S. No. 9) was opened for signature before the Convention even came into force. It added rights to property, education, and free elections. Protocol 2, which came into force in 1970, conferred advisory jurisdiction on the Court. Only the Committee of Ministers can request advisory opinions, and those opinions may 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”.[47]

Protocol 2 was later integrated into the Convention in its present form as articles 47, 48, and 49. Protocol 4 (E.T.S. No. 46) prohibited imprisonment for debt and guaranteed freedom of movement. Protocol 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,[48] (but even in Russia death penalty is not applied since 1998, and the temporary moratorium on its application was made permanent by a judgment of the Constitutional Court in 2009).[49] The death penalty was finally abolished entirely by Protocol 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 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.

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.[50] Indeed, the number of applications submitted declined in the first few years. In 1955, there were 138 applications; in 1956, 104; in 1957, 101; and in 1958 they reached a low of 96.[51] 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.[52]

In this period the Court adopted a number of 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 modern-day condition (on this see more below, in Section 6.1). 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, of which the right to contact a solicitor was an integral part;[53] 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;[54] that long uncertainty about the status of the real estate destined for compulsory acquisition by public authorities violated the property rights of owners;[55] that unequal treatment of legitimate children and those born out of wedlock in inheritance matters was discriminatory and contrary to Articles 8 and 14;[56] that on-going trial should not prevent the press from discussing the subject-matter of this trial, which was of public interest;[57] that value-judgments expressed by journalist were not susceptible to proof;[58] that anti-sodomy laws in Northern Ireland violated privacy of consensual adults;[59] that right to life inherently comprised a positive obligation of the State to investigate deaths in the hands of the State’s s agents,[60] etc.

5.3. The Period of Protocol 11, 1998–2009: New Single Court

The second period may be briefly characterized by the following elements:

To a certain extent, the Court became a “victim to its own success”, and many of the problems which the Court faces now are the result of its growing popularity, especially in the new member-States.

Two factors led to the immense increase in individual applications: the Commission’s cultural change and the breakup of the Soviet Union and its satellites in Eastern Europe. As early as the mid-1970s, it was becoming clear that the Soviet and Eastern European economies were falling behind the capitalist countries of the West.[61] The Soviet per capita gross national product declined to negative 2.1% between 1985 and 1991.[62] Although the Soviet Union had once exported grain, during the 1970s it had to import ten million tons a year to feed its population.[63]

When Gorbachev was appointed General Secretary in 1985, he set out to reform the system.[64] He recognized that the Soviet Union did not have the resources to accomplish the necessary domestic reforms and at the same time continue to compete with the United States on military spending.[65] In addition, the domestic reforms required changing the culture of the government to one of openness, genuine democracy, and the rule of law.[66] The Soviet Union was thus no longer able or willing to prop up the post-Stalinist totalitarian regimes of Eastern Europe.[67]

As a result, in different ways, one communist government after another collapsed and was replaced by a Western-style democracy. On August 24, 1989, a noncommunist government was installed in Poland;[68] on November 9 and 10 the Berlin Wall was demolished;[69] on December 29, Vaclav Havel, the leader of Czechoslovakia’s opposition, was elected president;[70] Hungary held free elections in the spring of 1990;[71] and on October 3, 1990, the two Germanys were reunited.[72]

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 ...”.[73] 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.[74] The enlargement included states as far east as Bulgaria (admitted 1992), Moldova (admitted 1995), Russia (admitted in 1996), Georgia (admitted 1999), and Azerbaijan (admitted in 2001). Between 1989 and 2007, twenty-five countries joined. The last country to join the Council of Europe was Montenegro (2007).

In response, the Council adopted Protocol 11 (E.T.S. No. 155) in 1998. It remained in force until June 1, 2010, the date on which Protocol 14 (C.E.T.S. No. 194) came into force. The first article of Protocol 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 Committee of Ministers; made the judgments of the Court final; restructured the Court into committees and chambers, including the Grand Chamber; established a registry for the Court; and inserted headings into the text of the Convention. Finally, the jurisdiction of the new permanent Court became mandatory. The Committee of Ministers, 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 11 could be outlines as follows. A judge rapporteur, “charged with presenting the case to the Court . . . ,”[75] was assigned to each case. The rapporteur made a recommendation to a committee of three judges, who in turn made the decision on admissibility.[76] 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.[77] 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 a case on which a chamber has already ruled on the merits only in rare cases, where such case 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.[78]

The addition of so many states in so short a time exacerbated the flood of cases facing the ECtHR.[79] Despite the adoption of Protocol no. 11, the problem of backlog and delays was not solved. While the Commission and Court had given a total of 38 389 decisions and judgments in the forty-four 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.[80]

The Council wrote Protocol 14 to further reform the system, but it could only come into force if all the contracting parties ratified or acceded to it, and Russia did not do so for several years.[81]

5.4 The Period of Protocol 14, from 2010 to Present

The current period in the Court’s history is characterized by the following features:

The original purpose of Protocol 14 was to equip the ECtHR to deal with the landslide of cases that threatened to crush it. The Court’s annual report for 2003 notes 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.[83] 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.[84] 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).

To counter the blocking of the Protocol 14 by Russia and bring some temporary improvement to the situation, the Council adopted Protocol 14bis, which came into force on October 1, 2009.[85] 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.[86] It entered into force for nine countries before it was supplanted by Protocol 14.[87]

Russia was the last country which ratified Protocol 14 on February 18, 2010, and it came into force on June 1, 2010.[88]

The process for human rights cases under Protocol 14 is pictured in figure 1 (below). Inadmissibility decisions in individual cases are made by a single judge and are final. This is intended to release the manpower that was previously tied up by having committees of three judges examining inadmissible applications.[89] 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 to be final (Article 28). Applications that are not “already the subject of well-established case-law of the Court,” go to a chamber (Article 29 (1)). 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. But the two types of decision in interstate cases must be made separately (Article 29 (2)).

Protocol 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.[90]

This criterion appears to give the Court a lot of wiggle room in determining what is a “significant disadvantage.” The Court is restrained from abusing this criterion by the requirement that it examine cases that affect the application or interpretation of the Convention or national law even though their facts may seem trivial.[91]

In September 2011 the number of pending cases had risen to a peak of 160,000; during 2012 it decreased to 128,000;[92] and by the end of 2014 it stood at 70,000.[93] In three years the number declined by 56 %. The Court itself said, “this means that Protocol 14 has been a success, above all … particularly as regards filtering … ”.[94]

Although the Court attributes these dramatic decreases primarily to the methods introduced by Protocol 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. The Rule’s present form is the result of several amendments, most lately in 2013. 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. In addition, the Court appears to say that the Rule was not as strictly followed in the past as it has been more recently.[95] The Court describes the effects of the new Rule 47 as follows:

More efficient handling of repetitive and clearly inadmissible cases alleviated the situation to a certain extent but did not entirely solve the main problem of the Court, namely the backlog of meritorious and complex cases that remains beyond the Court’s capacity.[97]

Protocol 14 also allows the Commissioner for Human Rights to participate in hearings (Article 13, amending Article 36 of the ECHRO. The Commissioner for Human Rights is not a leftover from the earlier Commission; it is a relatively new position 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. The Commissioner’s participation has the potential to add an objective and knowledgeable voice to the procedure.

The Court’s website contains the following simplified scheme of processing individual applications:[98]

Figure 1

The reform of the Court and the Convention mechanism continues. A series of inter-ministerial high-level conferences on the future of the Court were held since the Interlaken Conference in 2010, resulting in continued support of the Court’s work through the declarations adopted by the member-States at these events.[99]

Protocol No. 15, adopted in 2013, inserts a reference to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble; it also reduces from 6 to 4 months the time within which an application must be lodged with the Court after a final national decision. It needs to be ratified by all member states to enter into force, in April 2018 four out of forty-seven ratifications were lacking.[100] 2013 has also seen the adoption of Protocol No. 16, which will allow 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 is optional and enters into force for the first ten states who have ratified it on 1 August 2018.[101] In April 2018 France was the tenth state which ratified the Protocol, so it is now in force.

5.5. Accession of the EU to the European Convention

An important change introduced by Protocol 14 was the granting of permission to the European Union (EU) to accede to the ECHR.[102]

EU grew out of a purely economic union created in 1951 and aimed at the merger of the European coal and steel industries. When the European Coal and Steel Community (ECSC) was founded, its goals were restricted to the economic sphere: “[T]he treaty is concerned with the establishment of a common market for coal and steel, managed by joint institutions on the basis of agreed policies”.[103] Gradually, other European Communities emerged, which in 1993 transformed into the European Union on the basis of the Maastricht Treatment.

The agenda of the European Communities and, later, of the European Union, 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”, in order to distinguish from the “Strasbourg Court”, i.e. the ECtHR). It was found that the fundamental freedoms of human rights are inextricably bound to the freedom to act as a player in a free market system. Because there was nothing explicit in the original European Communities treaties about human rights, the ECJ began to take inspiration from sources outside the EU treaties, principally the ECHR. It did not cite the ECHR as authority but derived general principles of law from it. In other words, it took the ECHR as a source of customary law. As the importance of human rights to the EU increased, the EU gradually took steps to recognize and then adopt these as general principles of law. The Treaty on European Union of 1992 recognized the ECHR as general principles of law,[104] and the EU approved its own Charter of Fundamental Rights in 2000.[105] Finally, the Lisbon Treaty of 1 December 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.[106]

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 14 says that many of these consequences will have to be worked out and put into another protocol or an accession treaty.[107] Nevertheless it would seem that some are foreseeable.[108]

Despite Article 6 of the Lisbon Treaty, accession of the EU to the Convention mechanism does not appear imminent. In particular, it is due to the position taken by the Court of Justice of the European Union (CJEU, or “the Luxemburg court”). After the accession the position of the CJEU’s vis-à-vis the ECtHR will become analogous to that of national courts in relation to the Strasbourg Court at present.[109] On July 4, 2013 the European Commission and a number of EU members requested an opinion from the CJEU on the compatibility of the Draft Treaty on accession of the EU to the Convention with EU law. The Luxembourg Court’s decision, which was handed down on December 18, 2014, clearly held that the Treaty was not compatible with EU law for a number of substantial reasons.[110] The CJEU’s opinion appears to have been influenced by two principles that permeate the Draft Treaty on accession of the EU to the ECHR: 1) issues of 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 EU law.

These are issues that cannot be resolved without a substantial increase in time and effort given to detailed negotiation between the EU and the Council of Europe. The work on the accession agreement continues.

6. Resolution of cases before the European Court

6.1. Important interpretation principles

There are several principles that are 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.[111]

The first is subsidiarity, which sheds light on how the Court perceives its role vis-à-vis the domestic legal orders. Subsidiarity, in general, means that any task that an organization undertakes should be done at the lowest level possible. It could be expressed conversely: the only tasks that should be done at a higher-level are those that only the higher level is capable of doing. Thus, the Court and the Convention are considered to be 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. The terms “subsidiary” or “subsidiarity” are not, at present, used in the ECHR, but the principle is inherent in particular parts of it, and in the overall design of the Convention mechanism. Thus, 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 it’s task is not to replace domestic instances and not to second-guess, but to exercise residual control and insure 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.”[112]

The second, closely related, principle is the “margin of appreciation.”[113] 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 – for example, by the public interest at stake: in cases involving national security the States will enjoy a wider margin.[114] 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,[115] the quality of the domestic decision-making proceedings,[116] etc. It is particularly difficult for the Court to apply this principle consistently across legal systems that seem to defy comparison.[117]

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.[118] Protocol 15, not yet in force, will introduce the “subsidiarity” and the “margin of appreciation” principles in the preamble of the Convention, which will serve as an additional reminder 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 restrict that right 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.[119] The second paragraph of Articles 8 through 11 all allows some restrictions. For example, private and family life 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.”[120] 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.”[121]

Two other concepts are worth mentioning, which 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. 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”.[122] 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.[123] It should also be noted that the Court does not adhere strictly to the concept of precedent, but recognises the need to maintain “coherence” of its case-law.[124]

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 counter-demonstrators[125] or provide legal framework for recognition of gender identity for transsexuals.[126]

6.2 “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.”[127] “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.[128] Since then it has increased this practice to the point that one could now say that it is common.[129] Monetary awards are made for both pecuniary and non-pecuniary loss and may include the expenses of bringing the application and back interest when a government delays payment.[130] 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.[131]

Article 46(2) of the Convention gives the Committee of Ministers 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 Committee adopts a resolution accepting the government’s actions or the friendly settlement and stating that no further action is necessary.[132] Otherwise, the Committee asks the government to submit information on the progress toward fulfillment and puts the issue on the agenda of its next human rights meeting.[133] Although the documents submitted to the Committee 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 Committee of Ministers to end the government’s membership in the Council. No contracting party has yet been excluded from the Council. Since entry into force of Protocol 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, who for years failed to comply with the Court’s direction to release a political opponent. [134]

6.3 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.[135] Certainly the rate of compliance varies. Sometimes governments comply with a judgment quickly and completely; other times belatedly, incompletely, or not at all.[136] 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),[137] the rate of compliance with the Court’s judgments is very high and in 2017 over 70% of all individual payments were made on time.[138] By contrast, it is more complicated to assess compliance with the “general measures” indicated by the Committee of Ministers 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 forty-seven members of the Council, and it is difficult for outsiders to assess how deeply those cultures have assimilated the values of the ECHR. 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 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 corresponding benefit to them. Indeed, agreement to the ECHR opens a government to potential complaints, embarrassment, and the payment of damages. The wonder is that they would agree to it in the first place. In addition, although the contracting states are not required to incorporate the Convention into their national law, in practice they have all done so.[139] 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.[140]

6.4 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.”[141]

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 ...”.[142] The ECtHR used the pilot judgment procedure for the first time in 2004.[143] Since then the Court rendered over thirty judgments labeled as “pilot”.[144] In September 2017 the Court decided, for the first time, that if a State failed to adopt the general measures ordered under the “pilot judgment” procedure, it was a matter for execution and not continued individual adjudication. It sent over 12,000 cases back to the domestic authorities in order to ensure that deserving applicants received redress for the non-execution of domestic court judgments in the context of the of an earlier yet not implemented pilot judgment.

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 in order 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.[145] 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 in order 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.[146]

7. Official Sources on the ECHR and Its Case-Law

The original Convention can be found in the United Nations Treaty Series in both of the Council of Europe’s official languages, English and French. The latest version incorporates Protocols 11 and 14.[147] The web site of the COE’s Treaty Office includes a list of all the organization’s treaties.[148] 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;[149] and an explanatory report if there is one. The explanatory reports are wonderful aids to understanding the treaties.[150]

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.[151]

Currently the Court provides a wide variety of texts on its web site www.echr.coe.int. The search system that provides access to the HUDOC database[152] includes all the following documents beginning with 1960:

The HUDOC database provides a template with blanks for the following search criteria: document fields, language, importance, title, respondent state, application number, Convention article number, keyword, Strasbourg case law, conclusion, case number, and date. It also provides its own list of keywords to choose from and searches for cases decided under previous cases, like a citator.

Since 2012 to the official English and French versions, the Registry added interfaces in Turkish, Russian and Spanish. The Registry has also begun a three year 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.[153] 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 summarizes cases of particular interest and includes annual indexes to the cases.[154]

8. The Social Charter and the Expansion of Rights

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. First among these is the European Social Charter (ESC).[155] 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 whole Charter was revised and reissued as an autonomous treaty in 1996.[156] The new 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.[157] The Council of Europe devotes part of its web site to the ESC, and this is an excellent place to find many of the documents that this section of the article describes.[158]

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. The first part of the ESC consists of thirty-one 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 right of the family to social, legal, and economic protection; the right of elderly persons 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 sixteen other articles or sixty-three numbered paragraphs of their choice from part II; and to adopt “a system of labour 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 to the European Committee of Social Rights (ECSR), which consists of fifteen members elected from five regions of Europe; before 1998 this was known as the Committee of Independent Experts.[159] 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 (Articles 21, 22). The process for submitting reports on ratified articles began as a fairly simple process but has become rather complex over time.[160]

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 report on whether or not the country submitting the report is in compliance with the articles that it has ratified.[161] This function of the ECSR is quasi-judicial insofar as its reports have a particularly strong influence on subsequent actions taken.[162] They are nevertheless not binding.[163] The Committee can also send a copy of the report to the International Labour Organization (ILO). The Conclusions of the European Committee of Social Rights has published its reports since 1969.[164]

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.[165] The report is then sent to the “national organizations of workers and employers,”[166] and relevant nongovernmental organizations.[167] The report and the responses thereto are then forwarded to the Governmental Committee, which is “the political consultative body to the Committee of Ministers.”[168]

The ECSR makes recommendations on the basis of a substantive examination of the content submitted by the government.[169] The Governmental Committee re-examines the content, considers political factors, and then selects the cases that will be referred to the Committee of Ministers.[170] Although the Committee of Ministers usually adopts the recommendations of the Governmental Committee, in a few cases it has adopted the recommendations of the ECSR instead. While the Committee of Ministers’ resolutions are not binding, they do express weighty substantive and political opinions.[171]

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 November 9, 1995. The Protocol allows the following kinds of organizations to bring complaints against a state that has ratified, acceded to, or accepted it:

There is a fourth kind of organization that can file a collective complaint: a representative national organization that has particular 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 or not 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).

9. Conclusion

The Council of Europe is almost seventy years old. It has seen the reconstruction of Europe following World War II; the boom of the 1950s and ’60s; the bust of the 1970s; the Cold War and its end; the emergence of nations formerly dominated by or a part of the Soviet Union; and the recent worldwide recession and growth of nationalistic and anti-European forces within member-States.

During its existence, the Council has been in the forefront of the establishment of human rights norms through binding treaties. Although the treaties described above have been its most important and influential, it has enacted more than two hundred others.[173] 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.

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.[174] 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.[175] The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visits places of detention and ensures effective prohibition of torture.[176] 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 a various extents.

That being said, 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.

[1] T. Judt, Postwar: A History of Europe since 1945, 17 (2005).

[2] Id., 18

[3] W. I. Hitchcock, The Struggle for Europe, 16 (2002)

[4] Id.

[5] Judt, supra note 1, , 82.

[6] A. & F. Boyd, Western Union: A Study of the Trend Toward European Unity,

11 (1949)

[7] Id.

[8] Id.

[9] Judt, supra note 1, , 21.

[10] Hitchcock, supra note 3, , 23.

[11] M. Djilas, Conversations with Stalin, 114 (1962).

[12] Judt, supra note 1, , 100–01.

[13] Id. (discussing the theory of English historian Hugh Seton-Watson).

[14] Id., 110

[15] See Boyd, supra note 6, 71–94 (outlining the views of the various organizations for

European unity).

[16] Id., 73.

[17] Id.

[18] Id.

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

[20] Id., 607–08.

[21] 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

[22] Id., Article 1.

[23] Id., Articles 13, 14.

[24] Id., Article21.

[25] 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),

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

[27] Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950,

213 U.N.T.S. 221.The current version of the Convention (as amended by protocol 14 – see sub-section 5.4 below) is also available online

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

[29] 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), etc. See D. Harris, M. O’Boyle, C. Warbrick, Law of the Europe an Convention on Human Rights, 655–755 (2d ed. 2009) for an excellent explanation of the rights provided for in the protocols to the Convention.

[30] Simpson, supra note 19, 601–02.

[31] D. Gomien, D. Harris, L. Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, 1998, 31.

[32] See the description of the process under section 5.1. and Figure 1.

[33] See Robertson, supra note 26, 164.

[34] Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental

Freedoms art. 27(1), May 11, 1994, E.T.S. No. 155

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

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

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

[38] Janis et al., supra note 36, 15–19.

[39] Id., 21.

[40] See ECtHR, Inter-States Applications, available at

[41] The current Article 35 of the Convention (in force from 1 June 2010) adds to this list one more inadmissibility ground: a complaint may be rejected if the applicant had not suffered a significant disadvantage, under condition that the case has been duly considered by the domestic courts and the respect for human rights does not require the continuation of the proceedings.

[42] See generally Harris et al., supra note 29, 757–810; and Janis et al., supra note 36, 27–49 for more detailed explanations of admissibility.

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

[44] Gomien et al, supra note 31, 51

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

[46] Robertson, supra note 26, 168

[47] Protocol No. 2 to the Convention for the Protection of Human Rights and Fundamental

Freedoms, May 6, 1963, E.T.S. No. 44, art. 1(2),

[48] K. Reid, A Practitioner’s Guide to the European Convention on Human Rights, 679

(3d ed. 2008)

[49] Library of Congress, Global Legal Monitor

[50] See E. Fribergh & M. E. Villiger, The European Commission of Human Rights, inThe

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, inThe European Court of Human Rights Overwhelmed by Applications 1, 6–7 (Rüdiger Wolfrum & Ulricke Deutsch eds., 2009).

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

[52] Tomuschat, supra note 50, 7

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

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

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

[56] Marckx v. Belgium, para. 48

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

[58] Lingens v. Austria, para. 46

[59] Dudgeon v. UK, para. 60

[60] McCann v. UK, para. 161

[61] Judt, supra note 1, 577.

[62] P. Hanson, The Rise and Fall of the Soviet Economy, 243, tbl.9.2 (2003).

[63] Hitchcock, supra note 3, 351

[64] Hitchcock, supra note 3, 354–58.

[65] Judt, supra note 1, 592

[66] Id., 597–600

[67] V. Sebestyen, Revolution 1989: The Fall of the Soviet Empire, 195 (2009).

[68] Hitchcock, supra note 3, 362

[69] Id., 366

[70] Id., 367

[71] Id., 360

[72] Id., 369

[73] 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).

[74] Id., 72–76

[75] Reid, supra note 48, 11

[76] Id.

[77] Id.; Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms: Explanatory Report, 44,

[78] Id., 47

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

[80] Protocol 14 Explanatory Report, 5 and 6

[81] Harris et al., supra note 29, 863–67.

[82] 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

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

[84] ECtHR, Annual Report 2008, 129 (2009)

[85] Protocol No. 14bis to the Convention for the Protection of Human Rights and

Fundamental Freedoms, May 27, 2009, C.E.T.S. No. 204,

[86] Protocol No. 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms: Explanatory Report, 22

[87] Protocol No. 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, Chart of Signatures and Ratifications

[88] Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Chart of Signatures and Ratifications,

[89] Protocol 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)

[90] Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms Art. 12, May 13, 2004, E.T.S. No. 194. This is part of Article 35 of the current ECHR.

[91] 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.

[92] ECtHR, Annual Report 2012, 6 (2013)

[93] ECtHR, Annual Report 2014, 5 (2015)

[94] Id.; Filtering is the process of deciding on prima facie admissibility of applications.

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

[96] Id., 3

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

[98] See flow chart

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

[100] See information on signatures and ratifications

[101] See information on signatures and ratifications

[102] Article 59, paragraph 2 of the Convention as amended by Protocol 14

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

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

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

[106] 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

[107] SeeProtocol 14 Explanatory Report, supra note79, 101

[108] See generallyHarris et al., supra note 29, 28-30; H. C. Krüger, Reflections Concerning Accession of the European Communities to the European Convention on Human Rights,21 Penn St. Int’l L. Rev. 89 (2002).

[109] See Answers to FAQ on EU Accession, an information note prepared by the ECtHR Secretariat in 2010, p. 7

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

[111] See generally F. Matscher, Methods of Interpretation of the Convention, in supra note 50, The European System for the Protection of Human Rights, 63.

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

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

[114] D. Harris, M. O’Boyle, C. Warbrick, Law of the Europe an Convention on Human Rights, (1st ed., 1995), 14.

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

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

[117] R. St. J. Macdonald, The Margin of Appreciation, inThe European System for the Protection of Human Rights, supra note 50, 83, 83.

[118] See P. Leach and A. Donald,Hostility to the European Court and the risks of contagion

[119] SeeM.-A. Eissen, The Principle of Proportionality in the Case-Law of the European Court of Human Rights, in The Europe an System for the Protection of Human Rights, supra note 50, 125, 131–37.

[120] Harris et al., supra note 29, 14

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

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

[123] 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.

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

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

[126] See a description of the development of the Court’s case-law on positive obligations of the State vis-à-vis the transsexuals in C. Ovey and R. White, The European Convention on Human Rights, Oxford Univ. Press, 2002, 244-46.

[127] E. Lambert Abdelgawad, The Execution of Judgments of the Europe an Court of Human Rights, 10 (Human Rights Files, No. 19, 2d ed. 2008)

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

[129] See Reid, supra note 48, 608-56, for a list of monetary awards in individual cases.

[130] Harris et al., (2nd ed.), supra note 29, 857-58

[131] 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, 2 and 3.

[132] 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).

[133] Lambert Abdelgawad, supra note 127, 33

[134] See the ECtHR Press release of 14 December 2017 “New infringement procedure used for first time over 2014 judgment against Azerbaijan on opposition politician Mammadov”.

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

[136] Janis et al., supra note 36, 105 n. 90, 109.

[137] 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

[138] See 11th Annual Report of the Committee of Ministers 2017, 14

[139] Harris et al., (2nd ed.), supra note 29, 23

[140] 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 36, 112.

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

[142] Id., 5

[143] See Broniowski v. Poland

[144] 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.

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

[146] See Burmych v. Ukraine [GC]

[147] [European] Convention for the Protection of Human Rights and Fundamental Freedoms,

as amended by Protocols No. 11 and No. 14, entered into force June 1, 2010, E.T.S. No. 5

[148] Council of Eur., Complete List of the Council of Europe’s Treaties

[149] 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).

[150] Council of Eur., About Conventions in the Council of Europe Treaty Series

[151] 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).

[152] European Court of Human Rights

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

[154] ECHR Case-Law

[155] European Social Charter, Oct. 18, 1961, 529 U.N.T.S. 89, E.T.S. No. 35

[156] European Social Charter (revised), July 3, 1996, E.T.S. No. 163. This does not replace the original Charter, but complements it. Id. art. B; European Social Charter (revised): Explanatory Report, 10

[157] European Social Charter (revised): Explanatory Report, supra note 156, 7, 8.

[158] Council of Eur., European Social Charter

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

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

[161] Id., 381–83.

[162] Id., 378.

[163] Id., 383

[164] These are available for 2003–present at Council of Eur., Conclusions of the European Committee of Social Rights

[165] Świątkowski, supra note 159, 383–84

[166] Id., 384.

[167] There are two types: national nongovernmental organizations and specialized international

nongovernmental organizations that have consultative status to the Council of Europe.

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

[169] Świątkowski, supra note 159, 383–84

[170] Id., 386.

[171] Id., 388.

[172] 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.

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

[174] Council of Eur., Commissioner Mandate

[175] Council of Eur., Venice Commission

[176] Council of Eur., Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment