European Court of Human Rights

Establishment of the Court and developments up to 1998

The European Convention on Human Rights, which entered into force on 3 November 1953, also provided for the establishment of a judicial authority to ensure compliance by the States Parties with the guarantees enshrined therein. Five and a half years passed before this project was put into practice: after the judges had been elected on 21 January 1959, the Court was constituted on 20 April 1959 at a special formal sitting to mark the tenth anniversary of the Council of Europe. Reflecting the number of States which had acceded to the ECHR at that time, the first Court comprised 15 judges, including Hermann Mosler for Germany and Alfred Verdroß-Droßberg for Austria. At its third session, on 18 September 1959, the ECHR elected Arnold McNair of Great Britain as its first president. In addition, the rules of procedure were adopted.

Initially, the ECtHR shared responsibility for monitoring the Convention with the European Commission of Human Rights (ECtHR), which had already been established in 1954. The latter acted as an appeal body, subjecting each complaint to a preliminary examination and either declaring it inadmissible or reporting to the Committee of Ministers of the Council of Europe. Within three months of the submission of this report, the State concerned or the ECtHR itself could refer the matter to the Court, which then took a final and binding decision. Otherwise, the Committee of Ministers ruled on the complaint.

Unlike today, the ECtHR was not initially conceived as a permanent court. Moreover, in principle, only a state complaint was admissible. The individual citizen could only turn to the Commission with a complaint if the state concerned had recognised this right in a declaration to that effect. As a result, the number of decisions of the ECtHR remained low in the early years: until 1975, only twenty judgments were handed down. The first judgment on the merits dates from 1 July 1961 and concerned the case of Lawless v. Ireland.

With the increasing granting of the right of individual application, the importance of the Court grew. In the following decades, numerous additional protocols to the ECHR were adopted, which not only expanded the catalogue of human rights, but also renewed the organisation of the Court and facilitated individual access to the ECtHR. Thus, the 9th Additional Protocol, which came into force on 1 October 1994, allowed direct individual applications to the ECtHR under certain conditions. However, this was still dependent on the consent of the respective member state.

In the entire period up to 2014, the state complaint was only used twice independently of directly affected states: in 1968 after the coup in Greece and in 1982 after the coup in Turkey. Ludwig Minelli criticized this reluctance as a "miserable failure". In States Parties where ECHR rights are "systematically disregarded", they should be enforced by other States, not by private individuals.

The new permanent court since the 11th Additional Protocol to the ECHR

The 11th Additional Protocol, which entered into force on 1 November 1998, fundamentally reshaped the protection mechanism of the ECHR and marked the birth of the ECtHR in its present form. The Court was transformed into a permanent court sitting year-round and staffed by full-time judges. Individual complaints became obligatory for all member states and are now to be addressed directly to the Court, which is the only body called upon to rule on them. This was accompanied by the dissolution of the European Commission of Human Rights. The decision-making power of the Committee of Ministers, whose competence was limited to monitoring the implementation of the judgments of the ECtHR, was also abolished.

At the same time, the reform led to an enormous increase in the number of complaints. In order to curb the burdens on the ECtHR, which resulted in a significant increase in the duration of proceedings, the 14th Additional Protocol to the ECHR was adopted on 13 May 2004. Its entry into force was delayed until 1 June 2010 because Russia refused to ratify it for a long time. In particular, it facilitates the rejection of complaints. They can now be declared inadmissible even if the complainant suffers no significant disadvantage. If a complaint does not require further review, it may be dismissed by a single judge. In addition, if the case law is well established, the three-judge panel may also decide on its merits. The term of office of the judges is now nine years, and re-election is excluded.

One of the next challenges that the ECtHR will have to face is the accession of the European Union to the ECHR, which is envisaged in accordance with Article 6 (2), first sentence, TEU and Article 59 (2) ECHR.

Plenary session of the ECtHR

The Plenary is the assembly of all 47 judges at the European Court of Human Rights. Article 1 of the Rules of Procedure of the ECtHR defines the Plenary as the European Court of Human Rights in plenary session.

The Plenary has various tasks, such as drawing up and revising the Rules of Procedure of the ECtHR (Article 25(d) ECHR), electing the President of the Court, or electing the Registrar. It is convened by the President of the Court when the duties of the Court so require. If at least one third of the members of the Court so request, the President is obliged to convene the plenary session. Irrespective of this, he must convene the plenary session at least once a year.

The presence of at least two-thirds of the Judges of the Court shall constitute a quorum.

Judges

Each signatory state to the Convention sends one judge to the ECtHR in accordance with Article 20. Accordingly, the Court currently has 47 judges.

Requirements

The requirements for the judges of the ECtHR are determined by Article 21 (1): According to this, the judges must enjoy a high moral reputation and either fulfil the qualifications required for appointment to high judicial office or be jurists of recognised standing (Article 21 (1)). As a result, the majority of judges currently serving on the Court are former senior judges from member states and professors with special knowledge of international law.

A judge, on the other hand, does not have to be a national of the country that nominated him or her. This is why the small states of Liechtenstein and San Marino were allowed to be represented on the ECtHR by citizens of other states in the past. Even at present, a Swiss citizen sits on the Court on behalf of Liechtenstein. Until the entry into force of the 11th Additional Protocol on 1 November 1998, the rules were stricter in that the second sentence of Article 38, old version, stipulated that only one judge from each state could sit on the Court. This contributed to the fact that the Canadian Ronald St. John Macdonald served for Liechtenstein from 1980 to 1998 as the only non-European judge at the ECtHR to date.

For the selection of judges, criteria are also used which are not expressly listed in Article 21 (1) ECHR, but which, in the view of the ECtHR, follow implicitly from it and specify it in a certain way. These include, for example, sufficient knowledge of at least one of the official languages of the Court, as this is the only way to participate meaningfully in the work of the Court.

Choice

The judges are elected by the Parliamentary Assembly of the Council of Europe (Article 22), which gives them a high degree of democratic legitimacy.

When a vacancy for a judge of the Court is to be filled, the Convention State whose judge is to retire shall first draw up a list of three candidates who fulfil the criteria of Article 21, paragraph 1. The Parliamentary Assembly must reject the list and request the member state to submit a new one if the old one does not meet the requirements. A withdrawal by the member state is only possible until the end of the submission period.

The candidates are heard in person by a committee of the Parliamentary Assembly. The election shall then take place, and the person who obtains the majority of the votes cast shall be elected judge.

Tenure

Since the entry into force of the Fourteenth Additional Protocol, the term of office of the judges has been uniformly nine years without the possibility of re-election (Article 23, paragraph 1). It does not begin with the election, but only with the time of the assumption of office (Article 2 paragraphs 1 and 2 of the Constitution). This is done by taking an oath or making a declaration before the plenary or the President of the Court. (Article 3 of the Constitution). For judges who were in office when the 14th Additional Protocol came into force, Article 21 of this Protocol provides for transitional arrangements. Article 23(2) lays down an age limit for judges: Their term of office shall end prematurely when they reach the age of 70.

A judge shall remain in office until his successor takes up his duties. Beyond that time, according to Article 23(3), he remains active in cases he has already dealt with. This is specified in Article 26(3) and Article 24(4) of the Rules of Procedure to the effect that retired Judges shall continue to deal with appeals in respect of which they have already participated in the examination of the merits in the Chamber or Grand Chamber.

If a judge is prevented from participating in a proceeding or withdraws from the exercise of his office in a proceeding for weighty reasons (e.g. possible bias) in accordance with Art. 28, the respective nation must appoint either a replacement from the list of elected judges or a judge ad hoc (Art. 29).

The dismissal of a judge is only possible if the other judges decide by a two-thirds majority that he or she no longer fulfils the necessary requirements (Art. 23 para. 4). This has not yet occurred in the history of the ECtHR. Furthermore, the term of office may be terminated by the resignation of the judge (Art. 6 of the Constitution).

Status

The judges shall sit on the Court in their personal capacity (Article 21(2)). They are therefore not representatives of the States which nominated them and are not bound by their instructions. They shall enjoy, in accordance with Article 51, the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements concluded on the basis of that article. They shall enjoy the same privileges as are accorded to diplomatic agents under national law.

Judges may not engage in any (other) activity which is incompatible with their independence, their impartiality or with the requirements of full-time employment in that office (Article 21(3)). Secondary employment must be notified to the President of the Court (Article 4 of the Rules). Questions arising in this connection shall be decided by the full Court.

Under Article 25, the judges may influence the internal organisation of the Court in various ways. They adopt the Rules of Procedure, form the Chambers of the Court and elect the President, the Vice-Presidents, the Presidents of Chambers, the Registrar of the Court and his alternates.

Sections

The Court is composed of five sections, which are drawn up for three-year terms on the basis of geographical considerations and an equal distribution of the sexes. The two Vice-Presidents and three other judges appointed by the plenary act as section presidents. They are assisted and represented by the Vice-Presidents of the sections.

Pursuant to Art. 23 para. 3 sentence 1 ECHR, the judge of Ukraine continues to hold office despite the expiration of her term of office, since no successor has yet been elected and taken over her office.

Pursuant to Article 26, the Court shall sit with a single Judge, in Committees, in Chambers and in a Grand Chamber. The Committee shall consist of three Judges, the Chamber of seven Judges and the Grand Chamber of 17 Judges.

President and Registry

The European Court of Human Rights shall be directed by a President and two Vice-Presidents elected by the judges from among their number for a term of three years. The President represents the Court externally and chairs the full Court, the Grand Chamber and the committees of five judges. The Court has so far been presided over by ten presidents from eight different member states of the Council of Europe. Since 18 May 2019, the current President has been Róbert Ragnar Spanó of Iceland, while the two Vice-Presidents are Angelika Nußberger of Germany and Ksenija Turković of Croatia.

* As the oldest member of the Court, Baron McNair also presided during the first session of the ECtHR from 23 to 28 February 1959. The election of the President did not take place until 15 September 1959.

The administrative business of the Court of Justice shall be conducted by a Registry headed by a Registrar, who shall in turn be bound by the instructions of the President. The Registrar and his deputies shall be elected by the Judges for a term of five years.

Jurisprudence

The jurisprudence of the ECtHR is described, inter alia, as "dynamically evolving". International recognition has not always been given, as the "consensus of states [...] is low". With Russia in particular, there have already been difficulties in reaching agreement. In the case of electoral standards, considerable change had occurred over time.