European Court of HR (ECtHR)

Functions of the ECtHR ARE…

• enforce ECHR(convention) + fundamental freedoms

• examines , investigates complaints/ indiv applications;

• deals w no of issues ( 30 HRs - articles)

• huge backlog ( protocols 11, 14 are designed to help)

what is the context of ECtHR?

• reflects liberal Western state views

• social+ political rights

what is the structure of Protocol 14?

• single judge

• committee( 3 judges)

• chamber (7 judges)

• grand chamber (17 judges)

when can you make claim to ECtHR?

• must get through the stage before the merits of the case can be heard

• admissibility criteria is set out in Art 34-35

• fill the form

• have to go to the all possible (domestic) courts

what are the criteria for the case when making the claim to ECtHR?

• must be a victim

• exhausted all domestic remedies

• no anonymous complaints ( can NOT be on behalf)

• applicant must be within 4 months of domestic court decision

• can not be the same/similar as pre existing case being examined already by the court

• can not be incompatible with ECHR

what means the “living instrument principle” (ECtHR) + example

the court is not bound by the precedent, changes as the society changes

• Excellent example of LI in practice are the changes made in HR law with gender identity.

relationship between ECtHR and

• The European Court of Justice

• English courts

• UK Parliament

• UK delegated legislation

• UK administrative policies

• ECJ is not related to ECtHR; However, ECJ refers to the case law of the ECtHR and treats Convention on HR as though it was a part of the EU’s legal system

• require english courts to take into account previous decisions of ECtHR

• An adverse judgement by the Court in the UK, may require the amendment of an Act of Parliament - ADT V UK

• DL is void if it is incompatible w ECHR

• State must ensure that its policies and the activities of its agents are compatible with the Convention

what is judicial review and where does it take place? when the claim should be brought?

concerned with whether law has been correctly applied, and whether correct procedures have been followed ; usually take place in Administrative Court - part of QBD of High Court

• within 3 months of the decision

whose decisions can be challenged by judicial review?

• gov ministers and department

• local authorities

• health authorities

• chief constables

• prison governors

• some tribunals

what are the grounds for judicial review?

illegality; fairness; irrationality; proportionality

orders that the court can make

• a quashing order - which overturns or undoes a decision already made

• a prohibiting order - stops a public body from taking unlawful decision it has not yet taken

• an injunction

• a mandatory order - makes a public body to do something the law says it has to do

• a declaration - court can state what the law is or what the parties have the right to do