Menu: What is the role of the European Court of Human Rights? | Children's rights and the European Court
How to use the ECHR: What kind of violations can be brought before the Court? | How can I submit a complaint? Does anyone at the Court specifically address child rights issues? | What can be done to ensure a violation is not repeated after reparation has been sought?
Structure: How is the Court structured? | What are the challenges for the European human rights protection system?
The European Court of Human Rights, which has its seat in Strasbourg, France, monitors State Parties' compliance with European human rights treaties and their additional protocols.
The European Convention on the Protection of Human Rights and Fundamental Freedoms, which entered into force in 1950, is the main treaty monitored by the Court. This sets out the civil and political rights and freedoms that European States agree to ensure for people living within their jurisdiction. It complements the European Social Charter which guarantees civil and political rights and is monitored by the European Committee on Social Rights.
The Court delivers judgements against Member States of the Council of Europe on alleged violations of the European human rights treaties. Complaints may be lodged by individuals or by other Member States.
The European Court is part of the Council of Europe. Failure by States to abide by judgements can lead to expulsion from the Council of Europe, and the Court's decisions are binding on all Council of Europe members.
The European Court deals with cases in which an individual has not received adequate redress for violations in the courts in his or her country, or has been unable to access the national justice system. The Committee of Ministers, which is the decision-making body of the Council of Europe and is composed of its Member States’ Foreign Ministers, is responsible for supervising enforcement of the Courts’ judgements.
The Court also has an advisory function which allows it to issue ‘Advisory Opinions’. Advisory Opinions, which can be requested by the Council of Europe’s Committee of Ministers, go into more detail about a particular Article or aspect of a Convention to help interpret its meaning.
The main human rights treaty of the Council of Europe, the European Convention on Human Rights, makes no specific mention of children’s rights. However, the rights contained in the Convention apply to children, and indeed, complaints have been brought to the European Court of Human Rights alleging breaches of these rights in the case of children (see below).
In addition, the CoE has adopted a number of treaties specifically to protect children’s rights and which may be invoked at the European Court to challenge breaches of these rights:
- Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2010)
- European Convention on the Exercise of Children's Rights (1996)
This refers mainly to family proceedings.
- European Convention on the Legal Status of Children born out of Wedlock
- European Convention on the Adoption of Children
- European Convention on Recognition and Enforcement of Decisionsconcerning Custody of Children and on Restoration of Custody of Children
CETS No.: 105
- European Convention on Nationality
- European Convention on the Repatriation of Minors
The Court has also recognised the importance of the Convention on the Rights of the Child in its jurisprudence, stating that "[t]he human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child" (Sahin v. Germany). Further decisions of the European Court citing the CRC can be found in CRIN's "CRC in Court" case law database.
The first child rights case was brought before the Court in 1978. It concerned the judicial corporal punishment of a UK citizen, Mr. Anthony Tyrer, who was 15 at the time of the sentence in 1972. He had pleaded guilty at a local juvenile court in the Isle of Man to unlawful assault occasioning actual bodily harm to a pupil at his school. The court had sentenced him to three strokes of the birch.
The applicant claimed that his judicial corporal punishment constituted a breach of Article 3 of the European Convention which prohibits torture, degrading and inhumane treatment or punishment. He also claimed that the punishment was destructive to family well-being, contravening Article 8; that no remedies existed to rectify the violation as required by Article 13; and that the punishment was discriminatory because it was primarily applied to persons from financially and socially deprived homes (Article 14).
The European Commission, which determined the admissibility of complaints at this time, decided, by 14 votes to one, that the judicial corporal punishment was degrading and in breach of Article 3 of the Convention. The case was passed to the Court to make a binding decision. The Court also found the judicial corporal punishment to be in breach of Article 3 and afforded, in accordance with Article 50 of the European Convention, just satisfaction to the applicant. Read the full judgement here.
The many other child rights breaches which have since been litigated at the Court include the ill-treatment of children in police custody; the right to legal assistance for children in conflict with the law; the detention and deportation of young children; children's voice in child protection and placement decisions; international adoption; and corporal punishment at home and at school.
Notably, the Council of Europe's "Building a Europe for and with Children" programme also maintains Theseus, a searchable database of the Court's case law relevant to children available in English and French.
Any Member State or individual may lodge a complaint with the Court alleging a breach of rights in the Convention by a Contracting State.
In order for the Court to consider your application, it must meet certain criteria. These are listed below:
1. You must be a victim of a violation of one or more of the articles of the Convention. This usually means you will be a direct victim of a violation, although sometimes it is sufficient to show you are likely to be affected by a violation or that you belong to a group of people which is likely to be affected.
2. You must try all possible means of seeking redress in your own country before applying to the European Court of Human Rights.
3. Any application to the ECHR must be made within six months of the conclusion of any court proceedings that you have taken in your own country that could have provided you with a remedy or, if there were no proceedings that it was reasonable to expect you to take, within six months of the event which gives rise to your application.
To receive an application form the Court, you must send a letter to the European Court of Human Rights, Council of Europe 67075 Strasbourg-Cedex, France.
Your letter should include the following information:
1. Your details (name, address and nationality).
2. The country against which you are making your application.
3. The facts that have given rise to your application.
4. The article or articles of the Convention that you say have been breached.
The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient means to bring a complaint to the Court.
No one is appointed specifically to address child rights issues at the Court. However, the Council of Europe’s Commissioner for Human Rights may submit written comments and take part in hearings as a third party, on behalf of one of the applicants, but may not himself submit applications.
If a violation continues to have adverse effects on an individual after the applicant has received reparation (or ‘just satisfaction’) for that violation, the Committee of Ministers can request national authorities to take ‘ individual measures’ which aim to end and, as far as possible, redress these effects.
If the applicant has been granted reparation for a violation of the European Convention by the Court, the Committee of Ministers may request a State to take ‘general measures’ to prevent similar violations from taking place in the future.
The structure of the Court can seem complicated.
The Court consists of a number of judges equal to that of the High Contracting Parties and are elected by the Parliamentary Assembly of the Council of Europe.
It is divided into five Sections. Each judge is assigned to a section for a period of three years. The Sections take into account the different legal systems of the Contracting States. Each section has a chamber made up of seven judges and a Committee of three judges.
Most judgements are given by chambers. The role of the Committees is to dispose of cases which are clearly inadmissible. Committees deal only with individual complaints, not inter-State cases. If they cannot reach a unanimous decision, the case is referred to the Grand Chamber.
A Grand Chamber is made up of seventeen judges, including the President, Vice-President and Section Presidents. The Grand Chamber deals with cases where there are difficulties interpreting or applying the Convention. In addition, either party may ask that the case be referred to the Grand Chamber within three months of a judgement being delivered – in this way the Grand Chamber is a bit like a Court of Appeal. The Grand Chamber’s decisions are final.
In recent years, the European human rights protection system has faced a number of challenges. This is not surprising given that it was established in the 1950s and human rights standards have gained considerably in importance since that time.
The system became seriously overburdened as a result of a sharp increase in the membership of the Council of Europe and a general increase in applications to the Court of Human Rights following the development of human rights standards and greater awareness of the possibility of bringing complaints to this forum. The number of cases referred annually to the Court rose from seven in 1981 to 119 in 1997.
The complicated structure also cried out for reforms and led to an expansion of the Court’s powers. Previously, the system operated like the Inter-American system of human rights, in which a Commission and a Court share the work.
The European Commission of Human Rights used to review whether cases were admissible and, would then try to broker a friendly settlement between the parties. If this was not successful, it would pass the case to the Committee of Ministers who ruled on the alleged violation. If the State concerned had accepted the contentious jurisdiction of the Court (the Court’s authority to rule on human rights violations), the Commission could also ask the Court to issue a binding decision, otherwise the Committee of Ministers would decide if a violation had taken place and if so, award ‘just satisfaction’, or compensation to the victim. Individuals were not entitled to bring their cases directly to the Court.
To counter some of these problems, two Protocols were developed which made important reforms to the system. The first was Protocol No. 11. This Protocol, which entered into force in 1998, aimed to simplify the structure of the Court. It did this by abolishing the European Commission so that all cases would now be reviewed by the Court, while the Committee of Ministers could no longer rule on alleged human rights violations, but remained responsible for supervising their enforcement.
In spite of these changes, the caseload again became unmanageable, leading to the creation of an additional Protocol in 2004 - Protocol 14, which entered into force in May 2010. This does not make radical changes, but instead increases the flexibility of the Court to process applications. The main changes include additional admissibility criteria (which determine whether a case is viable or not), measures for dealing with repetitive cases, and reinforcing the Court’s capacity to filter unmeritorious applications.
Previous Publication (general) items
- 21/11/2013: Republic of Serbia: Outcomes and Challenges Regarding the Rights of Children with Intellectual Disabilities
- 21/11/2013: United Kingdom: A Decade of European Union (EU) Daphne Projects in Collaboration with the World Health Organization (WHO) Regional Office for Europe
- 21/11/2013: Northern Ireland Cooperation Overseas: Early Intervention from Policy to Practice A Social Care Perspective
- 21/11/2013: United Kingdom: Lessons Learned from Health Visiting Services
- 01/11/2013: The Guidelines for the Alternative Care of Children- Policy Brief
Organisation Contact Details:
Child Rights International Network
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Tel: +44 (0)207 401 2257
Last updated 24/11/2011 04:25:35