Academic journal article Texas International Law Journal

The European Court of Human Rights and Its Recent Case Law

Academic journal article Texas International Law Journal

The European Court of Human Rights and Its Recent Case Law

Article excerpt

I. INTRODUCTION

It is a great honor for me to participate in this Symposium on behalf of the European Court of Human Rights. Judge Luzius Wildhaber, the President of our Court, was unable to attend the meeting and has asked me to convey his best greetings to all of the participants and organizers.

The European Court of Human Rights (ECHR) is the oldest international court in the field of the protection of human rights. The Court was created under the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights,1 which was signed in Rome in November 1950 under the aegis and within the framework of the then-new Council of Europe. It was the first international tribunal established, within certain limits, to settle disputes between individuals and defending States. The drafters also envisioned that the Convention would apply to disputes between Member States.

The activity of the Court itself has progressively increased. During the first twenty years starting from 1960,3 most cases were settled by the European Commission of Human Rights and the Committee of Ministers of the Council of Europe.4

Protocol No. 11 to the Convention,5 which entered into force at the end of 1998, represents an important step toward strengthening the judicial character of the Convention machinery. In a few words, the new system has consisted of abolishing the European Commission of Human Rights and the quasi-judicial role of the Committee of Ministers, while transforming the Court into a permanent, full-time judicial body, merging the secretariat of the former Commission and the Registry of the "old" Court. Since the fall of the Berlin Wall, the number of Contracting States has nearly doubled due to the inclusion of East European countries and Russia. The Court is now a very important tribunal with a jurisdiction covering forty-three Contracting States with thirty-seven languages (even if the Court's official languages are only English and French), an area stretching from the Atlantic to the Pacific and from Norway to Malta, and embracing a population of 800 million. The full-time Court, which has forty-one judges and about 120 permanent lawyers, is the largest international Court dealing with human rights in the world.

One of the main challenges that the Court faces is dealing with an ever-growing case load while at the same time keeping the high standard of quality set by the "old" Court. Regarding the workload, I can give a few figures: in 2001, about 800 judgments were delivered, and 8000 to 9000 decisions were adopted that turned down applications as inadmissible or struck them out of the docket. However, during the same year, more than 13,000 new applications were registered. Put simply, the backlog has continued to grow. Our hope is first to stop this increase and, then, in the long run, to reduce the backlog. I will come back to the problems of the future, and the ways of solving them, at the end of my presentation.

II. GUIDING PRINCIPLES OF THE COURT

I would now like to explain more precisely the rights and freedoms that the Court is in charge of protecting before giving some examples of important recent judgments.

The role of the Court is dedicated to the protection of a number of rights that are listed in the Convention and its Protocols. Being a system based on a set of international treaties, the Contracting States themselves have undertaken commitments, and the scope of the Court is to ensure the observance of those commitments, as is clear from Article 19 of the Convention.6 In other words, the well-known principle of subsidiarity applies insofar as the Court has always considered its role as subsidiary. I quote the Handyside judgment of 1976 (§48):

The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of the 'Belgian Linguistic' case, Series A n. …

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