28 European courts of Human Rights and Case Law

Dr. Vesselin Popovski

Introduction:

The European Court of Human Rights (Court) is a regional human rights judicial body based in Strasbourg, France, that has delivered more than 10,000 judgments on violations of the European Convention on Human Rights and Fundamental Freedoms (Convention). It serves a complementary role to that of the European Committee of Social Rights, which oversees European States’ respect for social and economic rights. In 1998, the European human rights system was reformed to eliminate the European Commission of Human Rights, which previously decided the admissibility of complaints, oversaw friendly settlements, and referred some cases to the Court – in a manner similar to the current Inter-American Human Rights.

The Court was established on 21 January 1959 on the basis of Article 19 of the Convention when its first Members were elected by the Consultative Assembly of the Council of Europe. The Convention delegates the Court with ensuring the observance of the engagements undertaken by the Contracting States in relation to the Convention, its protocols, and the enforcement and implementation in the Member States of the Council of Europe. The jurisdiction of the Court has been recognized to date by all Member States of the Council of Europe. In 1998, by Protocol 1 to the Convention, the Court became a full-time institution and the European Commission of Human Rights was abolished. Since then individual victims may submit their complaints directly to the Court.

Learning outcomes:

To understand the historical background for selling up of the European court of human rights.
To understand the structure, process of submitting applications and complaint procedure.
To learn about Protocols 13 and 14 to the Convention.

Judges

The number of full-time judges sitting in the Court is equal to that of the Contracting States to the Convention, now 47. The Convention requires that judges be of high moral character and to have qualifications suitable for high judicial office, or be a juris-consult of recognized competence.

Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from three candidates nominated by each Contracting State. Judges are elected whenever a sitting judge’s term has expired or when a new State becomes party to the Convention. The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected or until the cases in which they sit have come to an end. The judges perform their duties in their individual capacity and should not have any institutional or other type of ties with the Contracting State on behalf of which they were elected. Judges are not allowed to participate in any activity that may compromise the Court’s independence. A judge cannot hear or decide a case if he or she has a family or professional relationship with the parties. A judge can only be dismissed from office if the other judges decide, by two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges enjoy the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe.

Judges used to be elected for a six-year term, renewable once. Protocol 14 that entered into force in 2010 amended this and now judges serve one non-renewable nine-year term.

Structure

In order to resolve several cases simultaneously, the Court is organized into five sections, or administrative entities, each of which has a judicial chamber. Each section has a President, Vice President, and a number of judges.

Within the Court, the judges work in four different groups, or “judicial formations”:

Single judge: only rules on the admissibility of applications that are clearly inadmissible based on the material submitted by the applicant.

Committee: composed of three judges. Committees rule on the admissibility of cases as well as the merits when the case concerns an issue covered by well-developed case law (the decision must be unanimous).

Chamber: composed of seven judges. Chambers primarily rule on admissibility and merits for cases that raise issues that have not been ruled on repeatedly (a decision may be made by a majority). Each chamber includes the Section President and the “national judge” (the judge with the nationality of the State against which the application is lodged).

Grand Chamber: composed of 17 judges. The Grand Chamber hears a small, select number of cases that have been either referred to it (on appeal from a Chamber decision) or relinquished by a Chamber, usually when the case involves an important or novel question. Applications never go directly to a Grand Chamber. The Grand Chamber always includes the President and Vice-President of the Court, the five Section Presidents, and the national judge.

There is also a Plenary Court – an assembly of all of the Court’s judges. It has no judicial functions, but elects the Court’s President, Vice-President, Registrar and Deputy Registrar and deals with various administrative matters, discipline, working methods, reforms, the establishment of Chambers and the adoption of the Rules of Court.

Submitting applications

Applications to the Court must comply with the requirements of Article 47 of the Rules of Court. The Court periodically modifies its rules – for example, in 2014 it began applying stricter requirements for individual applications. Copies of all relevant documents must be included along with the application, which is submitted by postal mail. The proceedings before the Court are conducted primarily in writing; public hearings are rare. There is no cost associated with submitting an application and the applicant may apply for legal aid to cover expenses that arise in the proceeding. While a lawyer is not necessary to lodge a complaint, applicants should have representation after the case is declared admissible, and must be represented by a lawyer in any hearing before the Court. Applications to the Court go through two phases: admissibility and merits. The specific nature of the case will dictate the speed and course of the proceedings. However, it may be months or years before an applicant receives a decision or judgment.

Admissibility of application

When the Court receives an application, it first determines if it meets the admissibility requirements. Admissibility decisions are made by a single judge, a three-judge committee, or a seven-judge chamber. To be declared admissible, an application must meet the following criteria:

(a) Exhaustion of domestic remedies

(b) Six-month application deadline (from the final domestic judicial decision)

(d) Applicant suffered a significant disadvantage

If an application fails to meet any of these requirements, it is declared inadmissible and cannot proceed. There is no appeal from a decision of inadmissibility.

Against whom a complaint can be filed

A complaint can be filed against one or more of the States bound by the Convention which has/have (through one or more acts or omissions) violated the European Convention on Human Rights. The act or omission complained of must be attributed to one or more public authorities in the State(s) concerned (for example, a Court or an administrative authority). The Court cannot deal with complaints against individuals or private institutions, such as commercial companies. The application must relate to one of the rights set out in the Convention. Alleged violations may cover a wide range of issues, such as:

(a) Torture and ill-treatment of prisoners;

(b) Lawfulness of detention;

(d) Discrimination in the exercise of a Convention right;

(e) Parental rights;

(f) Respect for private life, family life, the home and correspondence;

(g) Restrictions on expressing an opinion or on imparting or receiving information;

(h) Freedom to take part in an assembly or demonstration;

(i) Expulsion and extradition; confiscation of property; and expropriation.

A complaint cannot be filed for violation of any other legal instrument, such as the Universal Declaration of Human Rights and the Charter of Fundamental Rights.

Jurisdiction

The Court cannot take up a case on its own initiative; it has jurisdiction to decide only complaints submitted by individuals and States concerning violations of the Convention, committed by a State Party to the Convention that directly and significantly affect the applicant.

The jurisdiction of the Court is divided into (1) inter-State cases, (2) applications by individuals against Contracting States, and (3) advisory opinions in accordance with Protocol 2 to the Convention.

Inter-State cases – where a Contracting State of the Convention can bring an action against another Contracting State in the Court for alleged breaches of the Convention – have been very rare.

Applications by individuals constitute the majority of the cases heard by the Court. These can be made by any person, non-governmental organization or group of individuals, who do not have to be citizens of a State Party. Although the official languages of the Court are English and French, applications can be submitted in any of the official languages of the Contracting States. Applications should be in writing and signed by the applicant or by his or her representative. Once registered with the Court, the case is assigned to a judge rapporteur, who can make a decision on admissibility. A case may be inadmissible when it is incompatible with the requirements of ratione materiae, ratione temporis or ratione personae, or cannot be proceeded with on formal grounds, such as non-exhaustion of domestic remedies, lapse of six months from the last domestic decision, anonymity or substantial identity with a matter already submitted to the Court or with another procedure of international investigation. If the judge rapporteur decides that the case can proceed, it is referred to a Chamber which, unless it decides that the application is inadmissible, communicates the case to the Government of the State against which the application is made, asking for its observations. The Chamber then deliberates the case on its merits. Cases which raise serious questions of interpretation and application of the Convention, a serious issue of general importance or which may depart from previous case law can be heard in the Grand Chamber, if all parties to the case agree on relinquishing jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts the referral.

Advisory opinions are requested by the Council of Europe by majority vote, asking the Court to deliver opinions on the interpretation of the Convention, unless the matter relates to the content and scope of fundamental rights which the Court already considers.

Procedure and Decisions

After a preliminary finding of admissibility, the Court examines the case by hearing representations from all parties. The Court may undertake an investigation if it deems it necessary on the facts or issues raised in the application and Contracting States are required to provide all necessary assistance. All hearings are public, unless there are exceptional circumstances justifying the holding of a private hearing. In practice, the majority of cases are heard in private following written pleadings. In confidential proceedings, the Court may assist parties to secure a settlement, in which case the Court monitors the compliance of the agreement with the Convention.

The Court’s Chamber decides both issues regarding admissibility and merits in the same judgment. In final judgments, the Court makes a declaration that a Contracting State has violated the Convention, and may order the Contracting State to pay material and/or moral damages and the legal expenses incurred in domestic courts and the Court in bringing the case. The Court’s judgments are public and must contain reasons justifying the decision.

Chambers decide cases by a majority. Any judge who has heard the case can attach to the judgment a separate opinion. This opinion can concur with or dissent from the decision of the Court. In case of a tie in voting, the President has the casting vote.

The judgment of the Grand Chamber is final. Judgments by a Chamber of the Court become final three months after they are issued, unless a reference to the Grand Chamber for review or appeal has been made. If the panel of the Grand Chamber rejects the request for referral, the judgment of the Chamber of the Court becomes final.

Article 46 of the Convention provides that Contracting States undertake to abide by the Court’s final decision. On the other hand, advisory opinions are, by definition, non-binding. The Court has to date decided consistently that under the Convention it has no jurisdiction to annul domestic laws or administrative practices which violate the Convention. The Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court’s judgments. The Committee of Ministers oversees the Contracting States’ changes to their national law in order that it be compatible with the Convention, or individual measures taken by the Contracting State to redress violations. Judgments of the Court are binding on the respondent States concerned and States usually comply with the Court’s judgments.

Growing number of cases. Protocols 11 and 14

The accession of new States following the end of Communism in 1989 led to a sharp increase in applications filed in the Court and its efficiency was threatened seriously by the large number of pending applications, gradually accumulating and increasing. In 1999 8,400 applications were allocated to be heard. In 2003 27,200 cases were filed and the number of pending applications rose to 65,000. In 2005, the Court opened 45,500 case files. In 2009 57,200 applications were allocated, with the number of pending applications rising to 119,300. In response to this growth, Protocol 11 was designed to deal with the backlog of pending cases by establishing the Court and its judges as a full-time institution, by simplifying the procedure and by reducing the length of proceedings. More than 90 percent of them were declared to be inadmissible. Around 60 percent of the decisions by the Court related to what is termed repetitive cases, where the Court has already delivered judgment finding a violation of the Convention or where well-established case law exists on a similar case.

As the workload of the Court continued to increase, the Contracting States agreed that further reforms were necessary and in May 2004 the Committee of Ministers adopted Protocol 14 to the Convention, with the aim of reducing the workload of the Court and of the Committee of Ministers in supervising the execution of judgments so that the Court could focus on cases that raise important human rights issues. Protocol 14 entered into force on 1 June 2010.

Between 2006 and 2010, Russia was the only Contracting State to refuse to ratify Protocol 14, but in 2010 it ended its opposition in exchange for a guarantee that Russian judges would be involved in reviewing complaints against Russia. Protocol 14 led to reforms in three areas: (1) the Court’s filtering capacity was reinforced to deal with clearly inadmissible applications; (2) new admissibility criteria were introduced so that cases where the applicant has not suffered a significant disadvantage would be declared inadmissible; and (3) measures were introduced to deal more effectively with repetitive cases. Amendments were made so that a single judge could reject plainly inadmissible applications, while prior to this only a three-judge Committee could make such decision. A single judge may not examine applications against the State which nominated him. The three-judge Committee has jurisdiction to declare admissibility and decide on the merits of the case, if it was clearly well founded and based on well-established case law. Previously the Committee could only declare the case inadmissible, but could not decide on the merits, which could only be done by Chambers or the Grand Chamber. Protocol 14 also provides that when a Committee decides on the merits of a case, the judge nominated by that State is no longer a compulsory Member of that Committee. The judge can be invited by the Committee to replace one of its Members, but only for specific reasons, such as when the application relates to the exhaustion of national legal remedies.

Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload, Protocol 14 provides that the Court should encourage the parties to reach a settlement at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement’s execution. Protocol 14 also allows the Committee of Ministers to ask the Court to interpret a final judgment if there are difficulties in its execution. In order to prevent repetitive applications on structural problems in States in which the Court has previously made a final decision, the Committee of Ministers can in exceptional circumstances with a two-thirds majority initiate proceedings for non-compliance with a final decision in the Grand Chamber.

Article 17 of Protocol 14 allows the European Union to become party to the Convention. The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights. However, since all EU States are Members of the Council of Europe and parties to the Convention, there are concerns about consistency in case law between the two courts. The ECJ refers to the case-law of the European Court of Human Rights and treats the Convention on Human Rights as though it was part of the EU’s legal system, since it forms part of the legal principles of the EU Member States. The EU institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the Convention.

Significant Case-law

Below is an analysis of some significant cases that set important long-serving precedents, illustrating the essential role and function of the Court not only in satisfying individual petitions specifically, but also in developing international norms and human rights standards more generally and demanding States’ compliance with these norms and standards.

Kalashnikov v. Russia: detention in an overcrowded and unhygienic condition was ruled as a violation of Art. 3 (torture, inhuman or degrading treatment). It had a significant influence and Russia took measures to decrease the number of people in pre-trial detention and reform its old penitentiary system.

Budayeva v. Russia – a precedent-setting case where state negligence before natural disasters resulting in failure to evacuate was ruled a violation of the right to life in an international court for the first time in history. It led to other successful applications of victims of natural disasters in later cases (Kolyadenko v. Russia).

Bankovic v. NATO showed how the Court can be approached when another tribunal – the International Criminal Tribunal for Former Yugoslavia (ICTY) – failed to establish jurisdiction.

KALASHNIKOV V. RUSSIA

On 5 May 1998 Russia ratified the ECHR and its citizens could file applications to the ECtHR for violations of human rights. Three years earlier in 1995 Valery Kalashnikov, a banker in Siberia, was charged with embezzlement and spent the next five years in detention, before being released on 26 June 2000. After his release he filed an application to the ECtHR, complaining about the conditions of the detention where he was held.

Kalashnikov’s first challenge was eligibility – according to the generally recognized principles of international law, conventions are binding on contracting parties only in respect of facts occurring after their entry into force. The ECHR applies to Russia after 5 May 1998, and seen from that dateline – less than two years – Kalashnikov’s detention could not be regarded as a very long one. The Russian Government further argued that its decision to grant Kalashnikov amnesty in 2000 showed that it had no intention whatsoever of ill-treatment toward him. However, assessing the effect of the conditions of detention on the applicant, which were generally the same throughout his period of detention, both on remand and following his conviction, the ECtHR extraordinarily took the overall period of detention, including the period prior to 5 May 1998, as relevant to the case.

Kalashnikov’s major complaint was that the cell was overcrowded – in 17 square metres there were between 18 and 24 inmates, most of them smokers. It was difficult to sleep as the light and the TV were never turned off. More seriously, the cell was not only overcrowded, but also unsanitary, and Kalashnikov contracted skin infections, for which he was not given proper medical treatment. Many detention centres in Russia at the time would have been in similarly poor, if not worse, conditions. Ironically, one of the defences of the Russian Government was actually to admit the similar situation in other detention centres, as evidence that there was nothing prejudicial and individually intentional against Kalashnikov. The response of the ECtHR was that finding of purpose, or intention to humiliate Kalashnikov, is applicable only to ‘torture’, but not to ‘inhuman or degrading treatment’; therefore, they did not see the lack of intention as a barrier to proceed with the case and establish a violation of Art. 3.

Kalashnikov faced another challenge – the Court had to interpret the threshold of ‘minimal assessment of severity’, an inevitable task in all cases of torture or inhuman or degrading treatment where one has to distinguish ‘degrading treatment’ from some feelings of humiliation connected with any form of legitimate detention or punishment. Kalashnikov was denied liberty correctly as he had committed a crime; and the detention itself may involve a certain feeling of ‘degradation’, so the actual and difficult test was whether Kalashnikov suffered additional humiliation, in excess of what anyone would feel when denied liberty. The legal team representing Kalashnikov (hereinafter ‘the team’) searched the ECtHR previous case law to find, disappointingly, only a few cases where naked strip searches of prisoners (Iwanczuk v. Poland; Valasinas v. Lithuania) were previously qualified as ‘degrading’ by the ECtHR. Kalashnikov was not stripped naked, nor handcuffed, so his case was not easy to argue. There was also the burden of Raninen v. Finland where the ECtHR denied that the ‘minimal assessment of severity’ was met, despite the agreement that the handcuffing of Raninen was unnecessary. The deliberations in Kalashnikov also brought some light on the old definitional debate about the difference between ‘torture’, ‘inhuman treatment’ and ‘degrading’ treatment’. Many international lawyers attempted, but mostly failed, to establish such definitional clarity between the three qualifications. Nigel Rodley wrote:

[H]ow severe or aggravated inhuman treatment has to be for it to amount to torture is virtually impossible. Only the organs of the ECHR have attempted to conceptualize the difference between the various limbs of the formula of the prohibition (torture, inhuman treatment, degrading treatment).

The ECtHR in its decision in Kalashnikov found only a violation of the third category – ‘degrading treatment’, not of the first (torture) and the second (inhuman treatment). Kalashnikov, they ruled, was not tortured, his treatment was not ‘inhuman’, but it was ‘degrading’, establishing an Art. 3 violation. By definition, a treatment would be ‘inhuman’ if there is intense physical or mental suffering. No evidence of physical suffering above the ‘minimal assessment of severity’ was found. The team attempted to establish ‘mental suffering’ but could not find enough material to impress the Court. However, for treatment of detained persons to be ‘degrading’, the bar is lower. All that needed to be proven was that the treatment had aroused feelings of fear, anguish and inferiority in Kalashnikov, and that such feelings were humiliating and debasing. The Raninen precedent was against Kalashnikov. But the team found another precedent that could help Kalashnikov – Peers v. Greece.

PEERS V. GREECE

In August 1994 Donald Peers was arrested in Athens for drug offences and in July 1995 he was found guilty and sentenced to 13 years imprisonment. In November 1997, a court of appeal upheld his conviction, but reduced the sentence to 9 years and ordered his expulsion from Greece. In June 1998 Peers applied for release on probation. It was granted and once back in the UK he submitted an Art. 3 application to ECtHR, arguing that the conditions in detention were degrading. In particular, Peers complained he had to spend a considerable time confined to his bed with no ventilation and no window in the cell, he was not given sheets, pillows and toiletries even during the hottest period of the year. He had to use the toilet in the presence of another inmate and be present while the toilet was used by the other inmate. Peers claimed he felt humiliated and distressed and that the conditions of his detention had adverse physical and mental effects on him.

The Greek government responded that the applicant himself asked to be left in a segregation unit, and because there were no cells available, he had to share a cell with another inmate, hence the problem with the toilet. Greece argued that Peers could have moved to another part of the prison at any time, if he so wished, but he developed a friendly relationship with his co-inmate, and the two continued sharing a cell when they were both moved to another wing two months later. Greece disputed the ‘minimum level of severity’ and stressed that the conditions of detention in no way contemplated lack of respect for Peers, even less any physical or mental suffering. On the contrary, the authorities allowed him extra phone calls and frequent contacts with a psychiatrist.

The Court accepted that there was no evidence proving an intent of humiliating Peers, but noted that the absence of such purpose cannot conclusively rule out a violation of Art. 3. The fact remains that the authorities took no steps to improve the unacceptable conditions of detention and this denotes lack of respect for the applicant. The Court took into account that for at least two months the applicant had to spend a considerable time confined to his bed in a cell with no ventilation and no window, which would at times become unbearably hot, he had to use the toilet in the presence of another inmate and be present while the toilet was being used, and the Court was of the opinion that the prison conditions diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating, debasing him and breaking his physical or moral resistance, therefore amounting to Art. 3 degrading treatment.

The Peers judgment was exactly what Kalashnikov needed – overcrowded cell, use of toilet in view of others, acceptance of ‘degrading’ without direct intention to humiliate. The fact that inmates slept in turns on eight beds was a solid ground to argue that deprivation of sleep constituted a heavy physical and psychological burden on Kalashnikov. The Court further observed the absence of adequate ventilation in the cell with an excessive number of smoking inmates. Although Kalashnikov was allowed outdoor activity for two hours a day, the rest of the time he was confined to his cell with very limited space and a stuffy atmosphere. The Court noted that the cell was infested with pests and no anti-infestation treatment was effected. Kalashnikov contracted skin illnesses but the poor conditions remained. The Court decided that ‘the applicant’s conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant’s health and well-being, combined with the length of the period in such conditions, amounted to degrading treatment’ and ordered 5,000 euro in non-pecuniary damage and 3,000 in respect of costs and expenses.

The impact of Kalashnikov was significant, giving hope for millions of victims suffering in similar conditions. In 2002 a new Criminal Procedure Code came into force, aligning Russia to international standards. After Kalashnikov, one can see a reduction of the number of detainees,xii improvement in the conditions in detention and other legal reforms. Lawyers, inspired and guided by Kalashnikov, subsequently filed numerous other cases in ECtHR.

BUDAYEVA V. RUSSIA

States historically never accepted liability for natural disasters: they would blame God, Mother Nature, the Sky or the Ocean but would never admit their negligence. Budayeva v. Russia broke this taboo and found that state negligence – both before and after natural disasters – can be the primary cause of human suffering and this can amount to a violation of human rights, including Art. 2 (right to life). If States delay or do not deliver remedies after natural disasters, these could amount to violations of human rights, which can be litigated – in domestic courts first, and when victims are not satisfied – in international human rights bodies.

The ECtHR made a first breakthrough judgment (though on industrial rather than a natural disaster) in Guerra v. Italy (1998). A fertilizer factory in Italy repeatedly released inflammable gases, but the authorities ignored the warnings and on 26 September 1976 the factory tower exploded and tonnes of potassium carbonate massively polluted the area and 150 people were hospitalised with arsenic poisoning. The Guerra family was among the most affected and after exhausting all domestic remedies it approached the Court claiming that the authorities failed to inform the public of the risks and make evacuation plans in case of accidents. The Court ordered Italy to pay compensations to Guerra.

In a more serious case with loss of life, Oneryildiz v. Turkey (2005), a rubbish tip in Istanbul exploded because of decomposition of refuse and a resulting landslide on 28 April 1993 engulfed the house where the Oneryildiz family lived, killing nine people. The survivors filed an application, claiming that the authorities failed to prevent the explosion and the deaths at the tip, operated under their control. The Court declared that the right to life does not solely concern deaths resulting from state action, but also from inaction, emphasizing the positive obligation to take appropriate steps in the context of any activity endangering the right to life. The authorities should have known of the real and immediate risk, especially as they had set up and authorized the operation of the tip. The Court unanimously established a right to life violation on ‘account of the lack of appropriate steps to prevent the death of the applicant’s relatives, knowing or ought to have known that there was real risk to persons living near the rubbish tip’. The Court concluded also that ‘with regard to such hazardous activities, public access to clear and full information is a basic human right’, finding a violation of the right to information in addition to the violation of the right to life. The Guerra and Oneryldiz decisions frame the state responsibility to protect citizens from hazards, causing risks to life and well- being. This responsibility is not limited to disaster risk reduction, but include responsibility to inform citizens of contingency and emergency evacuation plans, as well as post-disaster responsibility to rescue, recover and compensate.

Later cases developed further the state responsibility for negligence in natural disasters. The flooding of a campsite after a heavy rain resulted in loss of life and the relatives of the victims approached the Court in Murillo Saldias v. Spain (2006). The application was inadmissible on procedural grounds (non-exhaustion of domestic remedies). Still, a precedent was set in deliberating on a right to life violation for failure to protect people from flooding.

Budayeva v Russia (2008) became the first successful litigation establishing state negligence for both pre-disaster failure to evacuate, and for post-disaster failure to rescue, recover and compensate. Tyrnauz, a town in Caucasus, has been exposed to repeated mudslides dating back to 1937. Various mud-retention dams had been built, but these were badly damaged by earlier mudslides and never repaired, despite many warnings. Two weeks before a murderous mudslide on 19 July 2000, the Ministry for Disaster Relief was warned by the local Mountain Institute monitoring weather hazards. Seeing no action from the Ministry, the Institute requested to set up emergency 24-hour observers to issue warnings to evacuate when the mudslides start. Even such a desperate last resort measure was ignored and a powerful mudslide hit the town. Budayeva and her elder son escaped, the younger son was rescued with injuries, but her husband Vladimir Budayev, who stayed behind to help his parents-in-law, died after the house collapsed. The town was subsequently hit by more mudslides, seven people died and many homes were destroyed. Budayeva, after exhausting all domestic remedies, filed an application to the Court. The Russian Government responded – un-surprisingly – that the natural disaster could not have been predicted and the damages could not have been prevented. Budayeva brought civil proceedings for compensation, but the claim was rejected by the district court on the grounds that authorities took all reasonable measures to mitigate the damage and that the local population was informed of risk of mudslides by media. Budayeva in response pointed to three major shortcomings of the authorities: (1) to maintain and repair the mud-retention dams; (2) to issue an official warning and evacuation order and avoid casualties, injuries and panic; (3) to initiate an enquiry and assess their conduct before and after the mudslides. The application was supported by witness statements, documents that funds were allocated, but not for the repair of the dam, letters from the Mountain Institute warning about mudslide risks, recommending to repair the dam and to set up observation posts to warn and evacuate. One of the last warnings pointed to potential record-high losses and casualties, if those measures were not carried out as a matter of urgency.

The decision Budayeva v Russia (20 March 2008) became the first case in history when state negligence before and after natural disasters was declared as violations of human rights in an international court, which pronounced Russia’s failure to discharge its positive obligation to protect the right to life, to implement land-planning and emergency relief policies, Russia’s ignorance of the fact that the area was particularly vulnerable for mudslides, exposing the residents to mortal risk. Budayeva crystallized the state responsibility for mitigating natural disasters and protecting human rights both in terms of substance – not maintaining protective infrastructure, nor issuing evacuation order; and in terms of procedure – lack of investigation, affirming that States should bear such responsibility both before and after natural disasters.

Following Budayeva, other victims of natural disasters successfully litigated and claimed compensation. In Kolyadenko v. Russia (9 July 2012) the victims lived close to a water reservoir, and when on 6 August 2001 the regional meteorological service issued a warning that heavy rainfall was expected, the Water Company, expecting that the inflow would be dangerous, started releasing water from the reservoir. As the intensity of the rain was much higher than forecast, the authorities increased the water release to the maximum, but gave no emergency warning and the victims were caught by surprise. One of them, Kolyadenko, a disabled woman, found out about the flood from her children, running to help her out when the water reached waist level. Another woman was at home with her 21-month-old son when the flat was instantly flooded, and she managed to escape, wading breast-deep to a nearby motorway. Another victim and her 19-year-old son opened the door, their home was immediately flooded, they rushed out into the street, where within 15 minutes the water had risen to breast height. She could not swim, but her son swam away and brought a ladder, which enabled them to climb onto the garage roof. Defending the case, Russia, similarly as in Budayeva, argued, that the infringements of human rights resulted from a natural disaster which could not be foreseen. The Court disagreed and reiterated that the flooding occurred because of the manifest failure to clean the river channel and make sure its capacity was adequate. Despite the fact that nobody died, the Court found a right to life violation, because Russia put lives at risk and failed to organize evacuation.

BANKOVIC V. NATO

In March-May 1999, NATO bombed Serbia over 72 days without authorization from the UN Security Council, seeking to compel Serbian authorities to stop the ethnic cleansing in Kosovo.

One of the controversial targets of these bombings was a TV Station (Radio Televizije Srbije), which was partially destroyed and 16 people were killed. The relatives of the victims approached the ICTY, a body established by the UN Security Council in 1992 to investigate and prosecute war crimes. In June 2000, the ICTY Prosecutor appointed a Panel of Experts to verify whether the air strikes were conducted in accordance with International Humanitarian Law, and the Panel concluded that no violation of was ascribed to NATO forces. They considered the TV station to be a legitimate target, as it was part of the Serbian integrated system of command and control, and the attack aimed to disrupt this system. Furthermore, NATO authorities announced the raid in advance; therefore, Bankovic was in the building at her own risk.

Failing at the ICTY, the relatives of Bankovic decided to approach the ECtHR. If IHL, with its strict threshold of military necessity in time of armed conflict, restricted their chances for remedy and compensation, they hoped that human rights law – applicable in time of peace – would be a better choice to file a violation of right to life. On 19 December 2001, the ECtHR announced its decision on Bankovic, declaring it inadmissible as the act fell outside the jurisdiction of the respondent States. The ECtHR came to the conclusion that there was no jurisdictional link between the victims and the respondent States on account of the extra-territorial act in question. One interesting legal issue was whether the exclusion of Bankovic from the respondent States’ jurisdiction would defeat the public order mission of the European Convention and leave a regrettable vacuum in its system of human rights protection. One of the Court’s obligations is to regard the special character of the Convention as a constitutional instrument of European public order for the protection of individual human beings, and its role was to ensure the observance of the engagements undertaken by the Contracting States within their legal space. Kosovo, the Court decided, did not fall within this legal space. The Convention – the Court wrote – is not considered to be designed for application throughout the world, even in respect of the conduct of the Contracting States. The Court concluded that the impugned action of the respondent States did not engage such responsibility and declared Bankovic inadmissible.

This is a disappointing judgment as it excludes the victims from the jurisdiction of NATO countries by virtue of questioning NATO absolute control of the airspace above Serbia. Declared acts of war, performed under NATO command and control within the territory of Serbia, could not be ascribed to the respondent NATO States. Serbia could not either have control of its airspace during the NATO invasion of that same airspace. If Bankovic died in a NATO State, the case would have been admissible. The ECtHR could have determined whether the victims were within the jurisdiction of respondent NATO States by virtue of an extraterritorial act, but it decided to define such extra-territoriality depending on effective control of relevant territory and its inhabitants, a consequence of military occupation or through the consent, invitation, or acquiescence of the Government. Paradoxically, as NATO bombed Yugoslavia without the consent of Yugoslavia, Bankovic had no jurisdiction.

Critique

There has been criticism of the Court’s structure. The former judge in respect of Cyprus, Loukis Loucaides, wrote that by introducing in its Rules a Bureau, the Court created a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention. The Court’s interpretation of the Convention’s reach has also been subject to criticism – ironically as either too narrow or too wide. Loukis Loucaides criticized the Court for a “reluctance to find violations in sensitive matters affecting the interests of the respondent States”. On the other hand, the British Law Lord, Lord Hoffmann, argued in 2009 that the Court has not taken the doctrine of the margin of appreciation far enough, being “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe”. Lord Hoffman considered that the ability of the Court to interfere in the detail of domestic law ought to be curtailed. He was in 2010 joined in the criticism by the President of the Belgian Constitutional Court, Marc Bossuyt, who in 2014 also criticized the Court for being judicial activist as it expanded the guarantees of the Convention to issues that clearly were not included in the Convention nor intended by the framers. Bossuyt especially criticized the Court’s handling of asylum cases with respect to articles 3 and 6 of the Convention.

Criticism from Russia, a country held to be in violation of the Convention by the Court in many decisions, is frequent. The Court’s judge in respect of Russia, Anatoly Kovler, explaining his frequent dissenting opinions, noted that “I dislike when the Court evaluates non-European values as reactionary (Refah v. Turkey)”. The Chairman of the Russian Constitutional Court, Valery Zorkin, pointing to the Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court decisions “touching the national sovereignty, the basic constitutional principles”.

Conclusion:

The Court has been able to achieve considerable success in the arena of human rights, although, like any other body, it has been subjected to criticism from various quarters.

Self-assessment questions:

What is the historical background for setting up of the European Court of Human Rights?

Answer: The European Court of Human Rights (Court) is a regional human rights judicial body based in Strasbourg, France, that has delivered more than 10,000 judgments on violations of the European Convention on Human Rights and Fundamental Freedoms (Convention). It serves a complementary role to that of the European Committee of Social Rights, which oversees European States’ respect for social and economic rights. In 1998, the European human rights system was reformed to eliminate the European Commission of Human Rights, which previously decided the admissibility of complaints, oversaw friendly settlements, and referred some cases to the Court.

How does one understand the structure, process of submitting applications and complaint procedure?

Answer: In order to resolve several cases simultaneously, the Court is organized into five sections, or administrative entities, each of which has a judicial chamber. Each section has a President, Vice President, and a number of judges. The Court’s 47 judges are selected by the Parliamentary Assembly of the Council of Europe from a list of applicants proposed by the Member States.

Within the Court, the judges work in four different groups, or “judicial formations”:

Single judge: only rules on the admissibility of applications that are clearly inadmissible based on the material submitted by the applicant.
Committee: composed of three judges. Committees rule on the admissibility of cases as well as the merits when the case concerns an issue covered by well-developed case law (the decision must be unanimous).
Chamber: composed of seven judges. Chambers primarily rule on admissibility and merits for cases that raise issues that have not been ruled on repeatedly (a decision may be made by a majority). Each chamber includes the Section President and the “national judge” (the judge with the nationality of the State against which the application is lodged).
Grand Chamber: composed of 17 judges. The Grand Chamber hears a small, select number of cases that have been either referred to it (on appeal from a Chamber decision) or relinquished by a Chamber, usually when the case involves an important or novel question. Applications never go directly to a Grand Chamber. The Grand Chamber always includes the President and Vice-President of the Court, the five Section Presidents, and the national judge.

Cases:

Bankovic and others v. Belgium and others (NATO members) (52207/99) ECHR 970 (19 December 2001).

Budayeva v. Russia (15339/02) ECHR (29 September 2008).

Iwanczuk v. Poland (25196/94) ECHR 15 (15 November 2001).

Kalashnikov v. Russia (47095/99) ECHR 591 (15 July 2002).

Kolyadenko and others v. Russia, (Applications 17423/05, 20534/05, 20678/05, 23263/05, 24283/05, 35673/05) ECHR (Judgment of 9 July 2012).

Murillo Saldías v. Spain (dec.) (No. 76973/01) ECHR (28 November 2006).

Oneryildiz v. Turkey 41 ECHR 20 (2005).

Peers v. Greece (28524/95) ECHR (14 September 1997).

Raninen v. Finland (152/1996/771/972) ECHR (6 December 1997).

Sukhovoy v. Russia (Application 63955/00) ECHR (27 March 2008).

Trepashkin v. Russia (Application No: 14248/05) ECHR (23 November 2005).

Valasinas v. Lithuania (44558/98) ECHR 2001-VIII (29 July 2001).

you can view video on European courts of Human Rights and Case Law

Reference

ICTY. “Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign against the Federal Republic of Yugoslavia.” (2008). Available at HTTP: <http://www.icty.org/sid/10052>
Klayman, Barry M. “The Definition of Torture in International Law.” Temple Law Quarterly 51, no. 3 (1978): 449–517.
O’Boyle, Michael. “Torture and Emergency Powers under the European Convention on Human Rights: Ireland V. United Kingdom.” American Journal of International Law 71, no. 4 (1977): 674–706.
Rodley, Nigel. The Treatment of Prisoners under International Law. 2nd ed. (Oxford, Oxford University Press, 1999).
http://www.ijrcenter.org/european-court-of-human-rights/
https://link.springer.com/book/10.1007%2F978-1-349-68398-7
http://www.gencs.ee/news/view/2629