The European Court of Human Rights

The ECHR hears cases concerning alleged violations of individual rights protected under the european Convention on Human Rights and its Protocols (if these are ratified by the Member State(s) in question), which are mainly civil and political rights. However, since 1979 the ECHR has developed interesting case law that has extended the scope of the european Convention with regard to social rights, and established a link between the rights protected by the european Convention and those protected by the european Social Charter. ⁸

In particular, the european Convention covers the following:

• The right to life (art.2)
• The prohibition of torture (art. 3)
• The prohibition of slavery and forced labour (art.4)
• The right to liberty and security (art.5)
• The right to a fair trial (art.6)
• The right to respect for private and family life (art.8)
• The freedom of thought, conscience and religion (art. 9)
• The freedom of expression (art. 10 )
• The freedom of assembly and association (art. 11)
• The right to an effective remedy (art.13)
• The prohibition of discrimination in the enjoyment of the rights set forth in the Convention (art.14)
• The right to hold free elections at reasonable intervals by secret ballot (art.3 of the Protocol No.1 to the Convention)

The Protocols to the Convention cover: ⁹

• The protection of property (art. 1 of Protocol No. 1)
• The right to education (art. 2 of Protocol No. 1 )
• The right to free elections (art. 3 of Protocol No. 1)
• The expulsion by a State of its own nationals or its refusing them entry (art.3 of Protocol No. 4)
• The death penalty (art.1 of the Protocol No. 6)
• The collective expulsion of aliens (art.4 of the Protocol No. 4)
• The prohibition of discrimination (Protocol No. 12)

The ECHR may only hear complaints against State Parties that have allegedly violated the european convention on Human Rights or one of its additional Protocols, if the Convention has been ratified by the State Party in question. The act or omission complained of must have been committed by one or more public authorities of the state(s) concerned (for example, a court of law or an administrative authority).

The horizontal effect of the Convention

Being originally a German legal concept, the “drittwirkung theory” in the framework of the european Convention means that the Convention itself can apply to legal relations between individuals and other private parties, not only between individuals and public authorities. It can be also defined as the possibility for individuals to enforce their rights against another private party.

In Strasbourg it is only possible to lodge a complaint against State authorities. However, the Court has indirectly admitted the “ drittwirkung theory”, by noting the State’s failure to take appropriate measures necessary to ensure respect for the rights and freedoms protected by Convention, “even in the sphere of the relations of individuals between themselves”. ¹¹ In this way, it deals with the responsibility of the State and not the responsibility of the private actor. As such, the ECHR can rule that a Member state is in violation of the Convention if it fails to protect the rights of individuals under its jurisdiction from third party violations. This is called the horizontal effect of the Convention.

Jurisdiction

An individual can present an application against a State when he or she complains of a violation that took place within its jurisdiction. There are three types of jurisdiction: ratione temporis, ratione materiae and ratione loci. The State is responsible ratione temporis for violations committed after the State ratifies the Convention. A violation can derive from a fact or punctual or continuous act ¹² . The Court has established that the obligations of the State applied also to cases of holding aliens in transit zones or international zones of an airport [ECtHR, case Amuur v. France, application no 19776/92, judgment 25 June 1996, par.52-53]. The European Court of Human Rights has summarized some of its jurisprudence on extraterritorial application of State obligations in the cause Hirsi Jamaa and Others v. Italy, specifically from paragraph 74 to 82.

Hirsi Jamaa and Others v. Italy (Judgment 23 February 2012 ratified on 16 November 2016 under Rule 81 of the Rules of Court) [Hirsi Jamaa and Others v. Italy, the European Court of Human Rights, App. No. 27765/09, judgment 23 February 2012 ratified on 16 November 2016 under Rule 81 of the Rules of Court]

The applicants were Somali and Eritrean nationals who left Libya aboard vessels with the aim of reaching the Italian coast. They were intercepted by the Italian authorities and sent back to Tripoli. The Court established that the migrants were under “the continuous and exclusive de jure and de facto control of the Italian authorities” in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities. The Court decided that the repatriation of migrants in Libya without previous examination of their specific cases had exposed migrants to a risk of abuses and that it constituted a collective expulsion.

Extra-territorial application

With regard to violations involving transnational corporations originating from Council of Europe Member States that occur beyond the territorial jurisdiction of the State, it is relevant to question whether the european Convention can be applied extra-territorially.

As provided by Article 1 of the Convention, the Court must first determine whether the matter complained of falls within the jurisdiction of the state concerned. In this regard, it is important to distinguish territory from jurisdiction. Although jurisdiction is mainly territorial, the court has pointed out that the term “jurisdiction” is not limited to a state’s national territory; rather, its responsibility can be engaged by acts carried out by its own agents where those acts produce effects outside its own territory, or where foreign territory falls, legally or illegally, under the control of the State. In other words, Convention provisions may apply extraterritorially, or have extra-territorial dimensions. Although there have been several cases in which the Court has confirmed the extra-territorial applicability of the convention, in recognizing that States may have responsibility for Human Rights violations outside of their own territory, these cases remain “exceptional circumstances”. ¹³ Moreover, until now, these extra-territorial cases have only involved violations attributable to state organs or agents, where the state has failed to respect the rights and freedoms of individuals, rather than having failed to protect individuals from violations by a third, non-state party. Corporate Human Rights violations usually entail that the state has failed to protect the Human Rights of individuals from violation by a corporate entity. Considering the Court’s strict approach to the extra-territorial application of the Convention, it is questionable whether it would admit a state duty to protect Human Rights beyond a state’s borders. ¹⁴ Indeed, where violations are occurring outside the territory of the State concerned, that State cannot regulate or control the private actors to the same extent as it can on its own territory. This is not to say that extra-territorial cases of Human Rights violations by corporate actors stand no chance of sucess, but rather that caution should be shown in considering whether or not to bring such a case before the ECHR, as the threshold for such cases, if deemed admissable, would be high. However, as a State is sovereign in its own territory, several commentators argue that it has the obligation to regulate business enterprises that are based or have their main place of business in that State, in order to ensure that they do not nullify or impair the enjoyment of Human Rights beyond the territory of the State ¹⁵ This could be interpreted in light of state responsibility for harm originating from or occurring on its territory under international law. Some would also argue States have an obligation to provide victims of Human Rights abuse access to their courts when harm is caused by a corporate actor based in their territory, in line with the obligation to provide access to justice. ¹⁶

Below follows a general presentation of the Court’s approach to extra-territorial jurisdiction to date.

Summary of ECHR principles applicable to extra-territorial jurisdiction

Establishing state jurisdiction in a given situation is key for admissibility to the ECHR.

In the Al-Skeini case, the Court sought to summarize the principles governing extra-territorial jurisdiction. ¹⁷ After underscoring the importance of the territorial principle, meaning that “a State’s jurisdictional competence under Article 1 is primarily territorial”, ¹⁸ the Court recalls that it has “in its case-law […] recognized a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries”. In all cases, the question “must be determined with reference to the particular facts” of the case. ¹⁹ These exceptional circumstances include, but are not necessarily limited to, “state agent authority and control” and “effective control over an area”. ²⁰

Effective control over an area

The ECHR has noted that “as a consequence of lawful or unlawful military action, a Contracting State effectively exercises control of areas outside of its national territory. The obligation to secure the rights and freedoms set out in the Convention, derives from the fact of such control, whether exercised directly, through the Contracting State’s own armed forces, or indirectly, through a subordinate local administration”. ²¹ The Court considers that it is a question of fact whether a contracting State exercises effective control over an area outside its own territory. In establishing this fact, the Court will not only look at the strength of the State’s military presence in the area, but may also consider the military, economic, and political support of the local subordinate administration which may have been provided “with influence and control over the region .” ²² The Court does not have competence to examine questions of jurisdiction in cases where States are acting under a UN mandate. ²³

State agent authority and control

This is a situation in which a State’s jurisdiciction may extend to acts of its authorities carried out abroad, without the territory being generally under the control of said State. ²⁴ The Court’s case-law provides several examples. First, it has been established that “acts by diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.” ²⁵ Secondly, when a State, through the consent, invitation, or acquiescence of another Government, “exercises all or some of the public powers normally exercised by that Government” over a certain territory or services, that conduct may fall within that State’s jurisdiction. ²⁶

Thirdly, the Court has, under certain circumstances, recognized that the “use of force by a State’s agent operating outside its territory may bring the individual under the control of the State’s authorities through the State’s Article 1 jurisdiction”. ²⁷ “The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the building, aircraft, or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question”.

Hassan v. United Kingdom (2014) ²⁸

The recent judgment is of great significance as the Court attempted to clarify its view on the interaction between international humanitarian law and international Human Rights law. It is also significant due to its decision on extra-territorial jurisdiction: the Court clearly established the extra-territorial jurisdiction of the United Kingdom for events that occured in Iraq. The case concerned the claimant’s brother, Tarek Hassan – an Iraqi national, who was captured and detained by the British armed forces in Iraq and held at Camp Bucca in 2003. About four months after his release from the camp, he was found dead in a distant part of the country that was not controlled by the British forces.

The Court could not find any breach of the Convention relative to Hassan’s capture, detention, or death. However, it unanimously held that, from the time of his arrest on 23 April 2003 until his release in May 2003, the claimant’s brother had been within the jurisdiction of the United Kingdom. ²⁹

Under Article 34 of the ECHR “The Court may receive applications from any person, non-governmental organisation or group of individuals […]”. The term “non-governmental organization” refers to every entity which is not part of the state administration or does not participate to the exercise of sovereign prerogatives or is not under the control of the State Any private individual person, whether a private individual or a legal entity (such as a company or an association), may file an application to the ECHR if the person considers that he/she has personally and directly been the victim of a violation of the rights and freedoms enshrined in the Convention. This means that an NGO may apply to the Court, but only if the ngO is itself a victim, and not as a representative for other individuals. An applicant may be represented by a lawyer, but this is not required. Submissions by individual persons, groups of individuals, or NGOs are referred to as “individual applications”, in contrast to those filed by Contracting States. the complainant does not need to be a national of one of the states bound by the convention, but needs to have been within the State’s “jurisdiction” at the time the alleged violation occurred, which generally means within its territory (see discussion on extra-territoriality above).

Amicus curiae

NGOs cannot apply to the Court for deprivations of an individual’s rights. At present, with the exception of those cases in which it is acting in the defence of its own rights, the participation of an NGO before the Court may only take the form of a third party intervention (amicus curiae), and may express its views on the subject matter of a pending case without being a party. ³⁰

According to Protocol No. 14, the Council of Europe Commissioner for Human Rights “may submit written comments and take part in hearings” in all cases pending before a Chamber or the Grand Chamber. ³¹

Individual applications are ruled by Article 34 of the ECHR, which must be read together with Article 35 of the ECHR, that establishes admissibility criteria of individual applications. If an application does not meet the criteria provided by Articles 34, it will be declared inadmissible as incompatible ratione personae according to Article 35. Individual applications must meet the following conditions:

1. The violation complained of must have been committed by a state party within its “jurisdiction” (Article 1 of the Convention).

2. the complainant must have directly and personally been the victim of the alleged violation. The ECHR extended the application of the Convention from the “direct victims”, to “indirect victims” (for instance close relatives of deceased or disappeared persons raising a separate complaint). It has also accepted appeals from “potential victims” in cases where a national measure in a domestic legal system may violate rights protected under the Convention. ³³

3. The complainant cannot make a general complaint about a law or a measure. For example a complaint on the grounds that a law or policy seems unfair or may potentially affect a group of persons would not generally be accepted by the ECHR. ³⁴ Similarly, people cannot complain on behalf of other people (unless they are clearly identified and the complainant is their official representative).

4. the complainant must have exhausted all available domestic legal remedies in the State concerned. Applicants are only required to exhaust domestic remedies that are available and effective. The remedy is meant to be accessible, capable of providing redress in respect of the applicant’s complaints ³⁵ and must offer reasonable prospects of success in order to be considered both effective and available. ³⁶ In determining whether any particular remedy meets the criteria of availability and effectiveness, regard must be given to the particular circumstances of the individual case. Therefore, not only must formal remedies be available, but there must also be consideration of the general legal and political context in which these remedies operate, as well as the personal circumstances of the applicant. ³⁷ Applications before bodies of the executive branch, such as ombudsmen, are not considered as effective remedies.

5. The complainant must have specifically raised before the domestic court those articles of the convention that he/she alleges have been violated. This exhaustion rule has usually been considered satisfied if the right has been raised whether implicitly or in substance. For example, if the applicant has raised the issue of torture in the domestic courts, it would satisfy this rule even if there was no explicit reference to Article 3 of the Convention. However, it is recommended to explicitly point out the breaches of the Convention as early as possible in national proceedings in order to eliminate any doubts. The rationale of the rule is simple: due to the subsidiary role of the Court – its role is essentially to control the domestic courts’ protection of the rights enshrined in the Convention – the Court simply cannot condemn the State for not having protected a right that was not brought to the attention of the domestic court. The ECtHR’s jurisprudence in this respect has evolved in the past years. For instance, the Court accepted an application against Italy even if the victim had not raised the offence directly in the nation proceeding, in the Vučković and others v. Serbia (2014) [http://hudoc.echr.coe.int/eng?i=001-142199].

6. The complaint must be filed within six months of the final decision of the domestic court being delivered, or from the moment the applicant has sufficient knowledge of the final domestic decision. ³⁸

   In an attempt to deal with the Court’s massive caseload (as of 1 November 2014, about 78.000 applications were pending before the Court), the conditions for admissibility have become significantly stricter after Protocol 14 and Rule 47 came into force: ³⁹ Reducing the amount of time in which the complaint must be filed contributes to this aim.

7. All applicants must use the formal application form, which is accessible on the Court’s website. any incomplete application will not be examined by the court, and it is neither possible to challenge this decision, nor to send in a new application. It is therefore essential to follow these procedures. See below for further information or an abuse of the right of individual application ; or

8. Since the entry into force of Protocol 14, the applicant must have “suffered a significant disadvantage ⁴⁰ ” as the effect of the violation. This clause responds to the principle of de minimis non curat pretor which is intended to discourage applications from persons whose disadvantage is not considered significant, and to allow the Court to focus on the most serious violations. even if the application is compatible with the Convention, and all of the formal admissibility criteria are respected, the application can still be declared inadmissible if it is deemed “ manifestly ill-founded” on the merits. In other words, “if it is immediately obvious to the average reader that it is far-fetched and lacks foundation”. ⁴¹

9. An application will also be declared inadmissible if it is considered to be an “abuse of the right of individual application”, although this has only occurred in exceptional circumstances. So far four categories have been identified: misleading information; use of offensive language; violation of the obligation to keep friendly-settlement proceedings confidential; application manifestly vexatious or devoid of any real purpose.

Process ⁴³

If the Court requires further information after your application is submitted, it will contact you. Once it has your full application and all the information it needs, your application will be allocated to one of the following judicial formations of the Court:

• Single judge: under Article 27 of the ECHR “A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination.” The decision is final, and it is not possible to challenge this decision nor to request any more information about it. If your case is declared inadmissible, the Court will close the case and destroy the file at a later date. In this case, you will receive a letter informing you of the decision, but you will not receive a copy of the decision. “If the single judge does not declare an application inadmissible or strike it out, that judge shall forward it to a Committee or to a Chamber for further examination.” (Article 27 of the european Convention)

• Committee of 3 judges: If the matter in the case (“underlying question in the case”) is already a “subject of well-established case-law of the Court”, (Article 28 of the ECHR), in other words, if your case is considered to be a repetitive case, a Committee of 3 judges can declare the application admissible and render a judgement on the merits. This Committee may also - by an unanimous vote - declare an application inadmissible, or decide to strike it out of its list of cases where such a decision can be taken without further examination. In this case, a letter will be sent to you explaining the procedure. The decisions and judgements are final.

  Single-judges and Committees operate as “filters” in order to reduce the workload on the Court.

• Chamber of 7 judges: If your case is not considered to be repetitive, a Chamber of 7 judges will examine it. Here, too, the case may be declared inadmissible. However, if it considers the application admissible, it will examine the merits of your case.

Before examining the merits of the case it will communicate the application to the government against which it is lodged, informing it about the existence of the complaint and inviting it to respond. This is the first time the Government will be informed about your application. The Court will then communicate the Government’s observations to you, and allow you to reply to those observations. At this stage you will be invited to use a lawyer if you were not represented by one at an earlier stage. You will also be invited to present any claims for financial compensation (so-called “just satisfaction”).

The Chamber then decides on the case by a majority vote. The admissibility stage is usually only in writing, but the designated chamber may choose to hold a public hearing, in which it will normally also address issues relating to the merits of the case.

Within three months of delivery of the judgement of the Chamber, any party may request that the case be referred to the grand chamber of 17 judges if it raises a serious question of interpretation, application, or a serious issue of general importance. The Court only accepts such referral requests in exceptional cases. The Grand Chamber decides by a majority vote and its judgements are final.

No case is ever sent directly before the Grand Chamber of 17 judges. However, a Chamber may relinquish jurisdiction in favour of the Grand chamber in the event that your case raises a serious question affecting the interpretation of the Convention, or in case there is a risk of inconsistency with the case-law of the Court.

Although individual applicants may present their own cases when lodging an application with the Court, legal representation is recommended in order to be well-founded and to avoid any risk of inadmissibility. Legal representation becomes mandatory once an application has been communicated to the respondent Government. The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient funds ⁴⁴

The length of the process is uncertain: although the Court examines the applications in a certain order, it prioritises cases of specific importance or urgency. Due to the massive case-load of the Court, the procedures tend to take a few years at the minimum. See the website for up-to-date information.

Interim measures

Rule 39 of the Rules of Court empowers the Chamber, if necessary, to take interim measures. Also known as “precautionary measures” or “provisional measures”, interim measures apply in case of emergency, only when there is a risk of irreparable damage. According to the ruling of the Court, interim measures are binding. ⁴⁵ Usually they are only allowed when Articles 2 and 3 are concerned (right to life and not to be submitted to torture, inhuman or degrading treatment). However the Court accepted in particular cases the applicant’s request when Article 8 was allegedly violated (right to respect for private and family life).

Outcome

The judgements of the Court – with the exception of rare referrals to the Grand Chamber – are final and binding on the states concerned. The Court is not responsible for the execution and implementation of its judgements. It is the task of the Council of Europe Committee of Ministers to monitor the execution of the Court’s judgements and to ensure that any compensation is paid. It also confers with the country concerned and the department responsible for the execution of judgements to decide how the judgement should be executed and how to prevent similar violations of the Convention in the future.

If the Court finds there has been a violation, it may:

• Award the complainant “just satisfaction” – a sum of money in compensation for certain forms of damage;
• Require the state concerned to refund the expenses you have incurred in presenting your case. If the Court finds that there has been no violation, there is no additional cost (such as those incurred by the respondent state).

For more information on how your application will be processed, see the documents “Your application to the ECHR: How to apply and how your application is processed”, “Questions and Answers”, and the Flowchart, available on the Court’s website. ⁴⁶