Critically assess the extent to which the individual complaint mechanism allows for the effective protection of human rights under the European Convention of Human Rights and Fundamental Freedoms.
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Staffordshire University LAW OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS Assignment 1 Critically assess the extent to which the individual complaint mechanism allows for the effective protection of human rights under the European Convention of Human Rights and Fundamental Freedoms. LLM Student number: 99-354223 Academic year 2001-2002 Semester 1 After World War II, the reconstruction of Europe was based on the establishment of institutions promoting and restoring those liberal and democratic values and ideals which had been seriously damaged by the dramatic events of the first part of the twentieth century. It is in this context that the Council of Europe was set up in 1949, within which the Convention for the Protection of Human Rights and Fundamental Freedoms was documented 1. The radical innovations that the ECHR introduced are set to protect mostly civil and political rights, as well as some social and economic rights 2 which have been subsequently introduced in the Convention Regime by means of Protocols 3. What makes the Convention a milestone in the development of human rights and of international law, is the creation of a supranational mechanism of control and enforcement of these rights and the fact that individuals are afforded a machinery for the implementation of their human rights whenever there is a failure on the national level to protect them.
Furthermore, the steady growth in the number of cases brought before the Convention institutions that have been manifested in as early as 1980, made it increasingly difficult to keep the length of proceedings within acceptable limits 5. The problem was aggravated by the accession of new Contracting States especially in the 1990's. The delay incurred by the two-tire structure, especially as concerns the decision of admissibility and the consideration of the merits, had become so extensive that the petitioner (in theory entitled to a prompt and effective redress for the wrong allegedly suffered) would de facto be deprived of such redress and possibly the injury would even be worsened. Time is a fundamental factor upon which redress of human rights violations depends, and an international machinery for the enforcement of human rights would lose most of its reliability if it took too long for affording adequate protection. Paradoxically, the individual's right to expeditious civil or criminal proceedings is itself one of those substantive human rights which the Convention protects and which if violated, can be enforced through its machinery. However, some would argue that the convention has proved to be a live instrument which, while inevitably keeping the balance, reflects and encourages in time, the changes in the self-centered attitudes of the High Contracting parties.
An Evaluation Group set up by the Committee of Ministers reported in September 2001. the Group recommended that the Court be empowered to "decline to examine in detail applications raising no substantial issue under the Convention" 12. The Group further recommended that instructions be given for a feasibility study to be carried out by the appropriate bodies into "the creation within the Court of a new and separate division for the preliminary examination of applications" 13. On the occasion of the Rome Conference, Protocol No. 12 to the Convention was opened for signature. The new Protocol provides for a general prohibition of discrimination and will enter into force when ten member States of the Council of Europe have expressed their consent to be bound by it. As manifested from the above analysis, irrespective of ones evaluation of socio-political perspectives, the improvement alone of the Convention's individual complaint procedure renders an absolute rejection of its merits unsubstantiated. It is only in a self-centred mode that one could argue that the ECHR is totally ineffective in pursuing its purpose to protect human rights in an international level. It could rather be supported that the individual complaint procedure is slowly but systematically developing into an effective mechanism aiming to not only secure just satisfaction to the complainants but also and most importantly, to implement and enforce domestic laws to abide to the same legal human rights standards.
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