European court of the humans right [ CEDH ]

European court of the humans right [ CEDH ]

1		PRESENTATION

European court of the humans right [ CEDH ], jurisdictional body international legatee by the European Convention of safeguard of the humans right and of fundamental freedoms adopted within the Council of Europe. Installation in 1959, the CEDH sits in Strasbourg.

The CEDH is charged to examine the complaints based on the violation, by a State signatory, provisions of the Convention of 1950.These actions can be brought as well by another State signatory as by an individual applicant (private individuals, groups of private individuals or nongovernmental organizations). It is in the possibility offered to a citizen to directly seize the Court and to obtain repair which the specificity of this international court resides.

The fields concerned relate as well to the repression of terrorism, the acts of torture, the custody, the respect of the private life, the access to justice, as for example on the safeguard of the natural and architectural inheritance or trade-union freedom.

2

HISTORY

It is at the following day of the Second World war, and in particular after the atrocities made by the mode Nazi, that many European countries get along on the need for subjecting to an international control the actions of the governments with regard to their own citizens. This awakening leads in 1950 to the signature of the European Convention of the humans right  —an international agreement engaging the States having ratified it—, whose principal originality is to institute a mechanism of control guaranteeing the respect by the States signatories of the obligations assumed by them.

With its creation, this mechanism of control is distributed between three bodies: a Commission, which operates primarily a filter while coming to a conclusion about the admissibility of the requests; a Court, which hands down a judgment final on the businesses which are submitted to him; a Committee of the ministers, charged on the one hand to make a final and constraining decision on the businesses which are not carried before the Court, and on the other hand to supervise the execution of its decisions or the judgments of the Court.

However, with the passing of years, this tripartite system appears insufficient and ineffective vis-a-vis an increasing number of complaints. Approximately 400 requests are recorded by the Commission in 1981 against 4 750 in 1997; this same year, the number of not recorded or provisional files opened by the Commission amounts to 12 000. This situation is explained in particular by the massive arrival within the Council of Europe of the Central European country and Eastern at the beginning of the years 1990  —the Council of Europe, which counted only 10 States at the time of its foundation in 1950, gathers 40 in 1998 of them.

In order to reduce the risks of clogging and to shorten the duration of the procedures, a reform is implemented in 1998, whose principal point is fusion in a single and permanent jurisdiction of the Commission and Court, which functioned before part-time. Within this new institutional framework, the Committee of the ministers does not have any more a judicial office and its role is limited to the control of the execution of the decisions of the Court.Moreover, whereas the right of individual petition was in the beginning subjected to certain conditions  —the States were to recognize it — the introduced reform makes this recognition obligatory.

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ORGANIZATION AND PROCEDURE

The Court is made up of a number of judges equivalent to the number of Member States of the Council of Europe. Completely independent, these judges do not represent any State. They are elected by the parliamentary Parliament of the Council of Europe for a six years mandate and are re-eligible. The procedure before the Court is contradictory and public.

The Court includes/understands three jurisdictional formations:a committee of 3 judges, a room of 7 judges and a Large Room of 17 judges. The committees have as a function to filter the recourse while ruling on their admissibility, i.e. on the conditions which allow the examination of the complaint. The principal conditions of admissibility are as follows: it is necessary to have exhausted all the possible grounds for appeal in front of the internal courts; the Court must be seized in the six months following the final rejection of the complaint brought in the country of origin; finally, the request must have a serious base.

If the request is accepted, it is transmitted to the room, which comes to a conclusion on the admissibility and the bottom and implements a procedure of amicable settlement. In the absence of an amicable settlement, the room hands down its judgment. This one is not final insofar as the procedure envisages, in exceptional cases, a possibility of reference in front of the Large Room.

Lastly, the Committee of the ministers supervises the execution of the judgments of the Court. All the final judgments of the Court are constraining for the States signatories of Convention.

It is following the Kruslin stop and Huvig of 1990 condemning the French State, that the latter worked out a law on the phone-tappings (law of July 10, 1990) which ensures from now on a protection of the right to the private life, such as it is guaranteed by Convention.