History of the Court’s reforms

Since the Court opened in 1959, the member States of the Council of Europe have adopted a number of protocols to the European Convention on Human Rights with the aim of improving and strengthening its supervisory mechanism. In 1998 Protocol No. 11 thus replaced the original two-tier structure comprising the Court and the Commission on Human Rights, sitting a few days per month, by a single full-time Court. This change put an end to the Commission’s filtering function, enabling applicants to bring their cases directly before the Court. A second major reform to address the considerable increase in the number of applications and the Court’s backlog was brought about by the entry into force of Protocol No. 14 in 2010. This Protocol introduced new judicial formations for the simplest cases and established a new admissibility criterion (existence of a “significant disadvantage” for the applicant); it also extended the judges’ term of office to 9 years (not renewable). Since 2010, three high-level conferences on the future of the Court have been convened to identify the means to guarantee the long-term effectiveness of the Convention system. These conferences have, in particular, led to the adoption of Protocols 15 and 16 to the Convention. Protocol No. 15, adopted in 2013, inserts a reference to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble; it also reduces from 6 to 4 months the time within which an application must be lodged with the Court after a final national decision. 2013 has also seen the adoption of Protocol No. 16, which will allow the highest domestic courts and tribunals to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. Protocol No. 16 is optional.

2 Structure

The Court became a permanent court with full-time judges on November 1, 1998, when the Commission was wound-up. Citizens now had the right to access the court directly. The new full-time Judges were elected by the Parliamentary Assembly of the Council of Europe.

By the time Protocol No. 11 entered into force the Court had delivered 837 judgments. At the end of 2005 the Court had delivered 5,968 judgments.

All member states of the Council of Europe have to sign and ratify the Convention. The court consists of a number of judges equal to the number of Contracting Parties, which currently stand at 47. Each judge is elected in respect of a Contracting Party by the Parliamentary Assembly of the Council of Europe. Despite this correspondence, however, there are no nationality requirements for judges (for example, a Swiss national is elected in respect of Liechtenstein). Judges are assumed to be impartial arbiters, rather than representatives of any country. Judges are elected to six-year terms. They can be re-elected.

The court is divided into five "Sections," each of which consists of a geographic and gender-balanced selection of justices.^[4] The entire court elects a President and five Section Presidents, two of whom also serve as Vice-Presidents of the court. All terms last for three years. Each section selects a Chamber, which consists of the Section President and a rotating selection of six other justices. The court also maintains a 17-member Grand Chamber, which consists of the President, Vice-Presidents, and Section Presidents, in addition to a rotating selection of justices from one of two balanced groups. The selection of judges alternates between the groups every nine months.^[5]

On September 18, 2008, the Court has delivered its 10,000th judgment, Takhayeva and Others v. Russia (no. 23286/04). The Strasbourg Court found violations of Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention on Human Rights concerning the applicants’ complaint that their relative disappeared after being abducted from their village in Chechnya by Russian servicemen.

PROTOCOL NO.14 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention.^[4] Between 2006 and 2010, Russia was the only contracting state to refuse to ratify Protocol 14. In 2010, Russia ended its opposition to the protocol, in exchange for a guarantee that Russian judges would be involved in reviewing complaints against Russia.^[5] Protocol no.14 led to reforms in three areas: The Court's filtering capacity was reinforced to deal with clearly inadmissible applications, new admissibility criteria were introduced so that cases where the applicant has not suffered a significant disadvantage would be declared inadmissible, and measures were introduced to deal more effectively with repetitive cases.^[6]

Protocol 14 amended the Convention so that judges would be elected for a non-renewable term of nine years, whereas previously judges served a six year term with the option of renewal. Amendments were also made so that a single judge could reject plainly inadmissible applications, while prior to this protocol only a three judge committee could make this final decision. In cases of doubt, the single judge refers the applications to the Committee of the Court. A single judge may not examine applications against the state which nominated him. The three judge committee has jurisdiction to declare applications admissible and decide on the merits of the case if it was clearly well founded and based on well established case law. Previously the three judge committee could only declare the case inadmissible, but could not decide on the merits of the case, which could only be done by a chambers of seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee decides on the merits of a case, the judge elected to represent that state is no longer a compulsory member of this committee. The judge can be invited by the committee, to replace one of its members, but only for specific reasons, such as when the application relates to the exhaustion of national legal remedies.^[7]

Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload of the Court, Protocol 14 states that the Court should encourage the parties to reach a settlement at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement's execution. Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgment if there are difficulties in the execution of a final judgment. In order to prevent repetitive applications concerning structural problems in contracting states on which the Court has previously made a final decision, the Committee of Ministers can in exceptional circumstances and with a two-thirds majority, initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court. Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the Lisbon Treaty, which entered force in December 2009, provides that the European Union should accede and become a party to the Convention.^[8] The Committee of Ministers is to evaluate in 2012 to 2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the Court. The Committee of Ministers is to decide before 2019 whether more reforms of the Court are necessary.

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