1 The Court Over Sixty Years

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

4 The Court and Domestic and International Legal Systems

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

6 Successes, Problems, and Potential

This concluding chapter explores how far the European Court of Human Rights (ECtHR) and the Commission have influenced politics in the forty-seven Member States, created common standards in Europe, and set a model for other parts of the world. The assessment of political success or failure of the Convention model will depend on the expectancies. Undoubtedly, the Court’s jurisprudence reflects the new political tensions and provides answers. Three factors, however, cannot but reduce the direct impact of the Court’s advocacy for ‘bona fide democracy’. First, the Court can only decide on cases brought before it. Second, the Court can only play a subsidiary role. Third, the whole Convention system is dependent on the good will of the Member States. If they do not execute politically important judgments that do not ‘please’ them, the Court's means in forcing them are rather restricted. Despite all these difficulties, whenever it could and within the framework provided by the Convention, the Court has identified the relevant violations and assessed them within the political context. Ultimately, the Court is a ‘European’ court and can speak only for its European Member States. Nevertheless, its voice is not only heard in Europe, but also beyond its borders. This is especially true when the challenges it has to deal with are universal, such as terrorism, migration, and military conflicts.

5 Judgments and Efficacy

This chapter evaluates the efficacy of the European Court of Human Rights (ECtHR). On the one hand, the European Convention on Human Rights (ECHR) system has had an amazing success in building up a constitutional order in Europe defining common values. Significant changes in the laws of all Member States were made; individual human rights violations were effectively remedied. On the other hand, Europe is far from being a human rights paradise. Even an average observer of daily news cannot avoid having the impression that in some States even the most basic human rights are not effectively guaranteed and that some so-called ‘democracies’ hide their disdain for individual rights behind lip services and promises to abide by the Convention, but in reality use membership in the Council of Europe only as a tool in foreign relations. The chapter then identifies the roles played by the Committee of Ministers, NGOs, and the Court in executing judgments on human rights violations. Article 46 para 1 ECHR obliges the parties to abide by the final judgment of the Court in any case to which they are parties. In line with the general rules of State responsibility, the Court interprets the obligations arising out of Convention violations as threefold: ‘to cease the breach, to make reparation for it and ensure non-repetition of similar violations in the future’.

3 Convention Law and Basic Doctrine

This chapter examines the basic doctrine of the European Court of Human Rights (ECtHR). ‘Doctrine’ is a word the Court would rather avoid. The Court has preferred to develop ‘formula’ as a basis for discussing all relevant issues, formula which are repeated again and again, developed further in manifold scenarios, used as argumentation patterns, allowing to arrive at differentiated solutions, formula often linked to specific cases for which they were originally invented. With about 20,000 judgments, the case-law is rich and all-embracing and gives a lot of illustrative examples of how to understand these formula. What is called ‘basic doctrine’ is therefore something very specific. It cannot be compared to stare decisis in the British tradition or theoretical models in German constitutional law. Originating from a conglomerate of different legal cultures, the ECtHR has developed not only its own style, but also its own jurisprudential approach. If there is a ‘doctrine’, it denies being one. Yet, the non-doctrinal doctrine is very influential and has created notions such as ‘margin of appreciation’ and ‘European consensus’ which convey a certain message of the Court's mission and are widely discussed and disputed.

2 Organization, Personnel, and Procedure

This chapter discusses the organization, personnel, and procedures of the European Court of Human Rights (ECtHR), frequently referred to as the Strasbourg Court. The Member States are the masterminds for setting the framework of the Court’s organization, procedure, and personnel. The rules laid down in the original version of the European Convention on Human Rights (ECHR) in 1950 underwent substantial reform when the permanent Court was established in 1998 on the basis of Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The framework has been further modified by important additional protocols, especially Protocol No 14 allowing ‘single judges’ to adopt binding decisions, and Protocol No 16 introducing advisory opinions in addition to adversary procedures. However, not only the Member States make the rules. The Court itself has an important say in adapting the general set-up to its practical needs and in fine-tuning the regulations.