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68-486: AHRC endeavours to achieve the following objectives stated in the Asian Charter: "Many Asian states have guarantees of human rights in their constitutions, and many of them have ratified international human rights instruments . However, there continues to be a wide gap between rights enshrined in these documents and the abject reality that denies people of their rights. Asian states must take urgent action to implement

136-587: A "demise" of margin of appreciation). Narrowing margin of appreciation is a target of criticism for those who believe that the ECtHR should minimize its role, especially from the United Kingdom. Proponents of a stronger recognition of margin of appreciation cite local conceptions of human rights, specific to the context of each country and its culture, and the risk of handing down judgements that lack local cultural and grassroots legitimacy. Critics argue that

204-645: A history of disregard for the principles of the Convention, Russia was expelled from the Council of Europe .) Other countries have also moved to restrict the binding nature of the ECtHR judgments, subject to the countries' own constitutional principles. In 2004, the Federal Constitutional Court of Germany ruled that judgements handed down by the ECtHR are not always binding on German courts. The Italian Constitutional Court also restricts

272-615: A law declaring it legal to overrule judgements from the ECtHR, codifying an earlier Russian Constitutional Court decision which ruled that Russia could refuse to recognize an ECtHR decision if it conflicted with the Constitution of Russia , and in 2020 Russia made constitutional amendments stipulating that the Russian Constitution supersedes international law. (In March 2022, due to the Russian invasion of Ukraine and

340-497: A legal requirement". After the preliminary finding of admissibility the court examines the case by hearing representations from both parties. The court may undertake any investigation it deems necessary on the facts or issues raised in the application and contracting states are required to provide the court with all necessary assistance for this purpose. The European Convention on Human Rights requires all hearings to be in public, unless there are exceptional circumstances justifying

408-507: A public hearing, which is transmitted as a webcast on the ECHR site . After the public hearing, the judges deliberate. The court's chamber decides both issues regarding admissibility and merits of the case. Generally, both these issues are dealt with 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

476-415: A sharp increase in applications filed in the court. The efficiency of the court was threatened seriously by the large accumulation of pending applications. In 1999, 8,400 applications were allocated to be heard. In 2003, 27,200 cases were filed and the number pending rose to approximately 65,000. In 2005, the court opened 45,500 case files. In 2009, 57,200 applications were allocated, with 119,300 pending. At

544-430: A sitting judge's term has expired or when a new state accedes 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. Judges perform their duties in an individual capacity and are prohibited from having any institutional or similar ties with the state in respect of which they were elected. To ensure

612-561: A violation in Neumeister v Austria (1968). The convention charges the court with ensuring the observance of the engagement undertaken by the contracting states in relation to the convention and its protocols, that is ensuring the enforcement and implementation of the European Convention in the member states of the Council of Europe. The European Court of Human Rights, which enforces the European Convention on Human Rights,

680-459: Is distinct from the 27-nation European Union (EU), although it is sometimes confused with it, partly because the EU has adopted the original flag of Europe created by the Council of Europe in 1955, as well as the anthem of Europe . No country has ever joined the EU without first belonging to the Council of Europe. The Council of Europe is an official United Nations observer . The jurisdiction of

748-461: Is incompatibility with other functions. They cannot be revoked by their state of origin, but only by decision of their peers, taken by a two-thirds majority and for serious reasons. The court has jurisdiction amongst the member states of the Council of Europe which includes almost every country in Europe except for Belarus , Kazakhstan , Kosovo , Russia and Vatican City . The jurisdiction of

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816-422: Is necessary for the court to stay relevant and its rulings to adapt to the actual conditions, such interpretations are labeled overreach or judicial activism by critics. The Court uses the doctrine of margin of appreciation , referring to the member states' rights to set moral standards within reason. Over time, the court has narrowed the margin of appreciation (to the point, according to some commentators, of

884-463: Is not institutionally related to the European Court of Human Rights: the two courts are related to distinct organizations. However, since all EU states are members of the Council of Europe and so are parties of the Convention on Human Rights, there are concerns about consistency in case law between the two courts. The CJEU refers to the case law of the European Court of Human Rights and treats

952-507: Is the best known body of the Council of Europe. The Council of Europe (CoE) ( French : Conseil de l'Europe , CdE) is an international organisation founded in the wake of World War II to uphold human rights , democracy and the rule of law in Europe . Founded in 1949, it now has 46 member states, covering a population of approximately 700 million, and operates with an annual budget of approximately 500 million euros . The organisation

1020-558: The Belgian Linguistic Case . Critics maintain that proportionality engenders largely subjective rulings: a judge's personal preferences and beliefs may color their perceptions of rights' relative importance. The Court has established certain formulas to ensure consistency across such decisions, but these guidelines cover only a small fraction of its case law. The Court of Justice of the European Union (CJEU)

1088-558: The European Convention on Human Rights , currently 46. The convention requires that judges be of "high moral character" and have qualifications suitable for high judicial office, or be jurists of recognised competence. Each judge is elected by majority vote in the Parliamentary Assembly of the Council of Europe from among three candidates nominated by each contracting state. Judges are elected whenever

1156-840: The International Covenant on Civil and Political Rights , and the International Covenant on Economic, Social and Cultural Rights together with other international human rights instruments are sometimes referred to as the " International Bill of Human Rights ". International human rights instruments are identified by the OHCHR and most are referenced on the OHCHR website. According to OHCHR, there are 9 core international human rights instruments and several optional protocols. Several more human rights instruments exist. A few examples: European Court of Human Rights The European Court of Human Rights ( ECtHR ), also known as

1224-583: The Strasbourg Court , is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg , France . The court

1292-535: The United Nations adopted the Universal Declaration of Human Rights , which aims to promote the universal recognition of rights set out therein, in order to strengthen the protection of human rights at the international level. While hugely important in setting a global standard for the first time, the declaration was essentially aspirational, and had no judicial enforcement mechanism. In 1949,

1360-829: The United Nations General Assembly , which are by nature declaratory, so not legally-binding although they may be politically authoritative and very well-respected soft law ;, and often express guiding principles; and conventions that are multi-party treaties that are designed to become legally binding, usually include prescriptive and very specific language, and usually are concluded by a long procedure that frequently requires ratification by each states' legislature. Lesser known are some "recommendations" which are similar to conventions in being multilaterally agreed, yet cannot be ratified, and serve to set common standards. There may also be administrative guidelines that are agreed multilaterally by states, as well as

1428-538: The text of the Convention "must be interpreted in the light of present-day conditions" rather than the intent of its framers . In Mamatkulov and Askarov v. Turkey (2008), the court emphasized that it "upholds individual rights as practical and effective, rather than theoretical and illusory protections". Another key part of the Court's interpretation is the 1969 Vienna Convention on the Law of Treaties . One area that

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1496-479: The writ failed to protect non-witnesses, even if they too face threats or risk to their lives. International human rights instruments International human rights instruments are the treaties and other international texts that serve as legal sources for international human rights law and the protection of human rights in general. There are many varying types, but most can be classified into two broad categories: declarations , adopted by bodies such as

1564-681: The " Bosphorus Presumption ", a policy of conditional deference articulated in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland . Because the CJEU represents a "comparable" human rights enforcement mechanism, the ECtHR may presume "that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its [EU] membership." This presumption may be refuted in any particular instances where protections of Convention rights are "manifestly deficient." Most of

1632-693: The Asian Human Rights Commission (AHRC) criticized the Writ of Amparo and Habeas Data (Philippines) for being insufficient: " Though it responds to practical areas it is still necessary that further action must be taken in addition to this. The legislative bodies, House of Representatives and Senate , should also initiate its own actions promptly and without delay. They must enact laws which ensure protection of rights—laws against torture and enforced disappearance and laws to afford adequate legal remedies to victims ." AHRC objected since

1700-474: The Convention on Human Rights as if it were part of the EU's legal system since it forms part of the legal principles of the EU member states. Even though its member states are party to the convention, the European Union itself is not a party, as it did not have competence to do so under previous treaties. However, EU institutions are bound under Article 6 of the EU Treaty of Nice to respect human rights under

1768-465: The Convention, on the basis of Protocol No. 16. This mechanism aims to foster dialogue between national courts and the ECtHR, thereby preempting Convention violations and minimizing the latter's caseload. Unlike preliminary references under EU law, advisory opinions may only be solicited by the "highest courts and tribunals" of a member state. Although Article 5 of Protocol No. 16 states that "Advisory opinions shall not be binding," they nonetheless enter

1836-449: The Convention. Despite the European Union's failure to accede to the Convention, the ECtHR has consistently held that member states are bound by ECHR guarantees even when executing and implementing EU law. Nevertheless, the Court has simultaneously sought to promote international cooperation and avoid interfering in internal Union affairs. It has balanced the conflicting aims of fostering European harmony and avoiding ECHR circumvention via

1904-604: The ECtHR has chosen to only impose them in cases concerning imminent danger to life and limb. Such measures are often deployed to prevent extradition or expulsion to countries with inadequate human rights guarantees, whereas requests to prevent potentially damaging publications or property seizures seldom elicit similar responses. The court may award pecuniary or non-pecuniary damages , called "just satisfaction". The awards are typically small in comparison to verdicts by national courts and rarely exceed £1,000 plus legal costs. Non-pecuniary damages are more closely correlated to what

1972-458: The ECtHR's case law and may be enforced through later individual complaints if contravened. ECtHR rulings have erga omnes effects (that is, they are potentially binding on all member states), because the court "determines issues on public-policy grounds in the common interest, thereby extending human rights jurisprudence throughout the community of European Convention States", although erga omnes effect "is not regarded by all States Parties as

2040-499: The EHCR has claimed that such consensus exists even when objectively it did not, due to the judicial activism of its judges. It has been said that in failing to distinctly define how a consensus is reached reduces its legitimacy. Furthermore, as the ECtHR grows, the consensus between the members diminishes. However, the margin of appreciation doctrine has also come under sharp criticism from jurists and academics who say that it undermines

2108-525: The Grand Chamber if all parties to the case agree to the chamber of the court relinquishing jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts the referral. Any contracting state to the European Convention on Human Rights can sue another contracting state in the court for alleged breaches of the convention, although in practice this is very rare. As of 2021 , five interstate cases have been decided by

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2176-557: The Rules of Court. The president of the court, the two vice-presidents (also section presidents) and the three other section presidents are elected by the Plenary Court, Section presidents are elected by the Plenary Court, a formation made up of the 46 elected judges of the court. The mandate of the holders is for a renewable period of three years. They are renowned for their morality and competence. They must be independent and there

2244-561: The applicability of ECtHR decisions. A 2016 book characterizes Austria , Belgium , Czechia , Germany , Italy , Poland , and Sweden to be mostly friendly to ECtHR judgements; France , Hungary , the Netherlands , Norway , Switzerland , and Turkey to be moderately critical; the United Kingdom to be strongly critical; and Russia to be openly hostile. In 2019, south Caucasus states were judged partially compliant in

2312-430: The applicant's representative. Once registered with the court, the case is assigned to a Judge Rapporteur , who can make a final decision on whether the case is inadmissible. A case may be inadmissible when it is incompatible with the requirements of ratione materiae , ratione temporis or ratione personae , or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of domestic remedies, lapse of

2380-483: The backlog of pending cases by establishing the court and its judges as a full-time institution, by simplifying the procedure and reducing the length of proceedings. However, as the workload of the court continued to increase, the contracting states agreed that further reforms were necessary and in May 2004, the Council of Europe Committee of Ministers adopted Protocol 14 to the European Convention on Human Rights . Protocol 14

2448-411: The casting vote. Article 35 of the European Convention on Human Rights establishes as a precondition on referral to the European Court of Human Rights, the exhaustion of domestic remedies. This condition is the consequence of the subsidiary jurisdiction of the supranational court, which monitors the application of the convention and seeks to eradicate human rights violations. The applicant must establish

2516-610: The contracting parties to the European Convention on Human Rights have incorporated the convention into their own national legal systems, either through constitutional provision, statute or judicial decision. The ECtHR increasingly considers judicial dialogue with national courts to be a "high priority", especially when it comes to implementation of judgements. According to a 2012 study, the ECTtHR tends to justify its decisions with citations to its own case law in order to convince national courts to accept its rulings. In 2015, Russia adopted

2584-401: The contracting state to redress violations. Judgments by the court are binding on the respondent states concerned and states usually comply with the Court's judgments. 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 or dissent with the decision of the court. In case of a tie in voting, the president has

2652-414: 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 is compatible with the convention, or individual measures taken by

2720-493: The convention. Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign the convention. That would mean that the Court of Justice is bound by the judicial precedents of the Court of Human Rights' case law and so is subject to its human rights law, which would avoid issues of conflicting case law between these two courts. In December 2014, the CJEU released Opinion 2/13 rejecting accession to

2788-438: The convention. The court's primary means of judicial interpretation is the living instrument doctrine , meaning that the Convention is interpreted in light of present-day conditions. International law scholars consider the ECtHR to be the most effective international human rights court in the world. Nevertheless, the court has faced challenges with verdicts not implemented by the contracting parties. On 10 December 1948,

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2856-471: 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. The Grand Chamber is made up of 17 judges: the court's president and vice-presidents, the section presidents and the national judge, together with other judges selected by drawing of lots. Grand Chambers include

2924-544: The court has been recognized to date by all 46 member states of the Council of Europe . On 1 November 1998, the court became a full-time institution and the European Commission of Human Rights , which used to decide on admissibility of applications, was abolished by Protocol 11. The accession of new states to the European Convention on Human Rights following the fall of the Berlin Wall in 1989 led to

2992-425: The court is generally divided into inter-state cases, applications by individuals against contracting states, and advisory opinions in accordance with Protocol No.2. Applications by individuals constitute the majority of cases heard by the court. A committee is constituted by three judges, chambers by seven judges, and a Grand Chamber by 17 judges. Applications by individuals against contracting states, alleging that

3060-430: The court: The Committee of Ministers may, by majority vote, ask the court to deliver an advisory opinion on the interpretation of the European Convention on Human Rights , unless the matter relates to the content and scope of fundamental rights which the court has already considered. Since 2018, member states can similarly request advisory opinions on questions of principle concerning the interpretation or application of

3128-467: The four months from the last internal decision complained of, anonymity, 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, the case is then referred to a chamber of the court which, unless it decides that the application is inadmissible, communicates the case to

3196-443: The government of the state against which the application is made, asking the government to present its observations on the case. The chamber of the court then deliberates and judges the case on its admissibility and its merits. Cases that raise serious questions of interpretation and application of the European Convention on Human Rights, a serious issue of general importance, or which may depart from previous case law can be heard in

3264-412: 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 both parties in securing a settlement, in which case the court monitors the compliance of the agreement with the convention. However, in many cases, a hearing is not held. The judgment of the Grand Chamber is final. Judgments by the chamber of

3332-972: The human rights of their citizens and residents." Its sister organization, the Asian Legal Resource Centre (ALRC), holds General Consultative Status with the United Nations Economic and Social Council (ECOSOC). The AHRC and ALRC are both based in Hong Kong . On the eve of the International Day of the Disappeared in 2007, AHRC ranked the Philippines among the top eight countries in Asia where forced disappearances of activists are not just rampant but are carried out with impunity. Sri Lanka heads

3400-504: The inability of the national courts to remedy the breaches, by exercising the appropriate remedies effective and adequate, and in substance alleging a violation of the Convention. Rule 39 of the Rules of the Court permits the ECtHR to "indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings." Interim measures are binding and afford litigants temporary protections on an expedited basis, although

3468-429: The independence of the court, judges are not allowed to participate in activity that may compromise the court's independence. Judges cannot hear or decide a case if they have a familial or professional relationship with a party. A judge can be dismissed from office only if the other judges decide, by a two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges enjoy, during their term as judges,

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3536-614: The latter is the European Court of Human Rights . Monitoring mechanisms also vary as to the degree of individual access to expose cases of abuse and plea for remedies. Under some conventions or recommendations – e.g. the European Convention on Human Rights – individuals or states are permitted, subject to certain conditions, to take individual cases to a full-fledged tribunal at international level. Sometimes, this can be done in national courts because of universal jurisdiction . The Universal Declaration of Human Rights ,

3604-403: 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. 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

3672-642: The list (statement posted on its website www.ahrchk.net). The activists took part in the Human Rights School Session of the AHRC for 2007. The AHRC listed the other countries where forced disappearances take place with impunity: Pakistan , Indonesia , Bangladesh , Nepal , Thailand , Philippines , and parts of India . Further, AHRC had evidence to show that Myanmar junta uses broom-wielding gangs or Swan-ar Shin heavies not guns to crush dissent (fuel price protests). On September 28, 2007,

3740-591: The living instrument doctrine has changed ECtHR jurisprudence over time is with regard to differential treatment exclusively based on ethnicity , gender, religion, or sexual orientation , which it is increasingly likely to label unjustified discrimination . In addition, with the proliferation of alternative family arrangements, the court has expanded its definition of family under Article 8, for example to same-sex couples , as in Oliari and Others v Italy (2015). Although defenders argue that living instrument doctrine

3808-446: The principle of "emerging consensus" of the member states on which the ECtHR operates is fundamentally flawed, because such a consensus often relies on trends, and historically in many instances social and political consensus was retrospectively acknowledged to have been wrong. Such an approach is accused of risking stigmatisation and coercion of the few dissenting countries, encouraging a pack mentality . Furthermore, critics argue that

3876-509: The privileges and immunities provided for in Article 40 of the Statute of the Council of Europe . The European Court of Human Rights is assisted by a registry made up of around 640 agents, of which a little less than half of lawyers divided into 31 sections. The registry carries out preparatory work for the judges., and performs the communication activities of the court, with the applicants,

3944-408: The public and the press. The registrar and the deputy registrar are elected by the Plenary Court. The plenary court is an assembly of all of the court's judges. It has no judicial functions. It elects the court's president, vice-president, registrar and deputy registrar. It also deals with administrative matters, discipline, working methods, reforms, the establishment of Chambers and the adoption of

4012-409: The state can afford to pay than the specific harm suffered by the complainant. In some cases, repeated patterns of human rights violations lead to higher awards in an effort to punish the responsible state, but paradoxically in other cases they lead to lower awards, or the cases being struck entirely. The court's primary method of judicial interpretation is living instrument doctrine , meaning that

4080-403: The state violated their rights under the European Convention on Human Rights , can be made by any person, non-governmental organisation , or group of individuals. Although the official languages of the court are English and French, applications may be submitted in any one of the official languages of the contracting states. An application has to be made in writing and signed by the applicant or by

4148-453: The statutes of tribunals or other institutions. A specific prescription or principle from any of these various international instruments can, over time, attain the status of customary international law whether it is specifically accepted by a state or not, just because it is well-recognized and followed over a sufficiently long time. International human rights instruments can be divided further into global instruments , to which any state in

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4216-423: The time, more than 90 per cent of applications were declared to be inadmissible, and the majority of cases decided—around 60 per cent 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 European Convention on Human Rights or where well established case law exists on a similar case. Protocol 11 was designed to deal with

4284-517: The twelve member states of the newly created Council of Europe began work on the European Convention on Human Rights , drawing inspiration from the rights already set out in the Declaration, but with the crucial difference that—for the European countries which chose to sign up to it—there would be a judicial mechanism to ensure that they respected the basic rights of their citizens. The court

4352-464: The universal nature of human rights. Proportionality analysis governs much of the Court's jurisprudence. The guarantees of ECHR Articles 8, 9, 10, and 11 are subject to whatever limitations may be "necessary in a democratic society," citing factors including national security, public safety, health and morals, and the rights and freedoms of others. Such conditions require the balancing of individual rights and community interests, as first articulated in

4420-549: The world can be a party, and regional instruments , which are restricted to states in a particular region of the world. Most conventions and recommendations (but few declarations) establish mechanisms for monitoring and establish bodies to oversee their implementation. In some cases these bodies that may have relatively little political authority or legal means, and may be ignored by member states; in other cases these mechanisms have bodies with great political authority and their decisions are almost always implemented. A good example of

4488-469: Was drafted with the aim of reducing the workload of the court and that of the Committee of Ministers of the Council of Europe, which supervises the execution of judgments, so that the court could focus on cases that raise important human rights issues. Judges are elected for a non-renewable nine-year term. The number of full-time judges sitting in the court is equal to the number of contracting states to

4556-456: Was established in 1959 and decided its first case in 1960 in Lawless v. Ireland . An application can be lodged by an individual, a group of individuals, or one or more of the other contracting states. Aside from judgments, the court can also issue advisory opinions. The convention was adopted within the context of the Council of Europe, and all of its 46 member states are contracting parties to

4624-417: Was established on 21 January 1959 on the basis of Article 19 of the European Convention on Human Rights when its first members were elected by the Parliamentary Assembly of the Council of Europe . Initially, access to the court was restricted by the European Commission of Human Rights , abolished in 1998. The court kept a low profile during its first years and did not accumulate much case law, first finding

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