Additionally it has to be mentioned that the requirement that the private party bringing a claim be a victim of the defendant Contracting State's violation of the rights of the Convention, has to be satisfied for the Court to have competence ratione peronae. The rationale for this requirement limited to private parties is to avoid an actio popularis and restrict the legal standing to those private petitioners who have suffered from the breach of the rights accorded in the Convention as a result of the defending Contracting State's action or inaction. However, the Commission has proved quite liberal in interpreting both the concept of "person, non-governmental organization or group of individuals," and that of victim. As to the former, it has interpreted person as meaning both natural and juridical persons. As to the latter, it has admitted petitions from indirect victims, that is, relatives of the direct victim. The general liberal orientation seems to be that petitions will be admitted as long as the petitioner provides reasonable grounds to be a victim.
Before the implementation of the 11th protocol on 1 November 1998 , the individual complaint proceedings commenced with a petition submitted to the Commission; the complaints were the subject of preliminary examination which determined their admissibility. Were applications had been declared admissible and no friendly settlement had been reached , the Commission drew up a report stating the facts and expressing an opinion on the merits of the case. The report was transmitted to the Committee of Ministers. Only the respondent state and provided that it had accepted the compulsory jurisdiction of the court, had the right, within a period of three months, to bring the case before the court for a final binding adjudication. The committee of ministers supervised the execution of the court’s judgment.
Thus at this stage of the life of the Convention, private parties were not entitled to bring their case before the court. It was the politically centred Committee of Ministers who decided whether there had been a violation of the Convention and, if appropriate awarded just satisfaction to the victim. The adjudicative role of the Committee of Ministers has been much critisised since it induces fears of political interference both to the applicant and the public at large, thus retracting the purpose and efficacy of the individual complaint mechanism.
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 . 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. Those that are optimistic for the future of the effective function of the Convention and the individual application process would stress the progressive effectiveness of this innovative model in promoting a better protection of the individual through the progressive full recognition of substantive and procedural rights.
Ever since the Convention entered into force, twelve Protocols have been adopted each reflecting some of the current political economical and social changes of the Contracting States and their ongoing collaboration . It was Protocol No9 that enabled individual applicants to bring their case before the court, subject to ratification by the respondent state and acceptance by a screening panel. Subsequent case law has also reflected the abovementioned changes and has also introduced a traceable degree of flexibility. Protocol 11 by virtue of Art 34 it has been made impossible for the High Contracting Parties to exclude the right of individual complaint .
The initial and important stage of the preliminary examination is now undertaken by a three judge committee of the Court who may unanimously decide that the case is inadmissible or strike it out of the list where no further examination is needed . A judge Rapporteur will be appointed to report on the case and the report will be considered by the Committee. If the decision is not unanimous the case will be referred to a seven–judge Chamber of the Court. The seven-judge chambers will consider the grounds for admissibility of the petition, which remain as they were before the effect of the Protocol. The eleventh protocol is frequently praised for shortening the length of proceedings, for abolishing the politicized Committee of Ministers, strengthening the judicial character of the system by making it fully compulsory and lastly, for managing to extensively alter and simplify the structure of the Convention procedure.
The one-tier structure agreed in the eleventh Protocol is a compromise between those states which wanted to maintain a two-tier structure by transforming the Commission in a court of first instance and the Court in a court of appeal, and those states which instead wanted one institution responsible for one and only one decision. The compromise goes in favour of this second position because there is indeed only one permanent Court, but there is nevertheless a form of appeal available.
Avoiding to engage in a cryptography of the advantages and the practical difficulties they entail to the court proceedings but mostly to the individual applicant, since such discussion requires detailed examination and would be deemed rather pointless for the purpose of the present discussion , it could be of value to concentrate in an other procedural issue that merit attention, namely the appeal-like procedure .
The seven Chamber Court may request that the case be referred to the Grand Chambers which consists of seventeen judges, in exceptional cases which affect the interpretation and application of the Convention, or for avoiding the risk of inconsistencies in the Court's case load. Indeed, the party dissatisfied with the Chamber' judgment can seek leave to refer the case to the Grand Chamber, which shall be given by a five-judge panel if there are exceptional circumstances to warrant it. Members of the Grand Chamber shall include the president of the Chamber whose decision is to be examined and the judge of the Contracting State concerned. This last feature is contrary to a principle which the ECHR itself recognizes as a human right, that is, the individual cannot be tried twice by the same judge. However the rational given that the Court, provides for the presence of the judge from the Contracting State complained against, for the purposes of ensuring the adequate evaluation of the laws of that state could in some way justify this inconsistency and the availability of this procedure may still contribute to the effective protection of human rights. The Grand Chambers judgment is final. The effect of a final judgment of seven or seventeen judges is to impose an obligation to the Contracting party to amend its domestic law so as other people will not in future be victims of violation by a State of their human rights in effect protected under the Convention.
Those who have praise the standards applied by the conventions organs, especially in respect to the length and the simplification of procedures have again been disappointed in witnessing once again the Courts case-load increasing dramatically . Concern about the Courts capacity to deal with the rising volume of cases led to calls for additional recourses and possibilities which led to a further reform. 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” . 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” . 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.
BIBLIOGRAPHY
D.Feldman, Civil Liberties and Human Rights in England and Wales, Oxford University Press, 2nd ed, 2002
John Wadham & Helen Mountfield, Blackstone’s Guide to the Human Rights Act 1998, Blackstone Press Limited, 1999
DJ Harris M O’Boyle C Warbrick, Law of the European Convention on Humain Rights, Butterworths, 1995
Robertson & Merrils, Humain Rights in Europe, Manchester University Press, 3rd edn, 1993
http://www.jeanmonnetprogram.org/papers/02/020401.pdf
http://www.echr.coe.int
http://www.fpdes.com/litera/data/pred_bes.htm
http://www.conventions.coe.int/treaty/en/Reports/Html/177htm
http://www.conventions.coe.int/Treaty/en/Treaties/Html/155.htm
It was opened for signature in Rome in 1950 and entered into force in 1953.The ECtHR was set up in 1959.
eg. some property rights and right to education
This focus on civil and political rights was after all a common feature of the first wave of the human rights movement, which only more recently has paid due account to social and economic rights).
Further discussion on the changes it drafted, its beneficial contribution to the effectiveness of the individual complaint mechanism as well as its deficits of the mechanism the it left untouched, will be made below.
The number of applications registered annually with the Commission increased from 404 in 1981 to 2037 in 1993By 1997 that figure had risen up to 4750. The number of provitional or unregistered files opened by the Commission each year had risen to over 12000 by 1997.The Court statistics reveal a similar story.
For Example, Protocols Nos 1,4,6,7 and 12 to the Convention added further rights and liberties to those granted, while Protocol No2 conferred on the Court the power to give advisory opinions; illustrating the acceptance of the Contracting States of the ECHR its functions and its organs. Protocol No8,attemted to ease of the workload of the Commission providing the setting of three Member Committees and Chambers of at least seven members, manifesting the ongoing acceptance of the ECHR and its functions not only by member states but also by the public. The remaining Protocols concerned the organisation of and procedure beforethe Convention.
As stated in D.Feldman, Civil Liberties and Human Rights in England and Wales, Oxford University Press, 2nd ed, 2002 at p45
Such a task would nevertheless stress once more the balancing character of the Convention’s efforts.
The number of registered applications rose from 5.979 in 1998 to 13.858 in 2001, an increase of around 130%.
http://conventions.coe.int/treaty/en/Report/Html/177.htm
