European Court of Human Rights

by

Ana Salinas de Frías

• LAST REVIEWED: 18 February 2021
• LAST MODIFIED: 26 August 2014
• DOI: 10.1093/obo/9780199796953-0114

Introduction

In the aftermath of the Second World War Europe was faced with the need to not only reconstruct the economies of many European countries, but also to guarantee that the horrors experienced as a result of the conflict would not be repeated in the future. But the fears in the countries of western Europe of any kind of totalitarianism, including apprehensions of the regimes in eastern Europe, remained. Soon after the European Movement adopted the “Message to Europeans” at The Hague Congress in 1948, ten western European governments ratified the Council of Europe’s Statute (London, May 1949). In compliance with one of its five final proposals, the Council of Europe—the European organization immediately set up to promote political cooperation among European countries—drafted, in a record time of eighteen months, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) at Rome in November 1950. This human rights convention made an enormously significant contribution through its adoption of a catalogue of fundamental rights to be protected. More importantly, however, it set up a procedural mechanism to effectively protect the rights and freedoms that had previously been established, including the right of the states parties to the convention to interstate applications, and, above all, the right to individual applications against states parties before an international court that would render a legally binding judgment. Consequently, it is first necessary to understand the birth of the ECHR within its historical and sociological context in order to fully understand the nature, functioning, powers, limitations, and evolving role of the European Court of Human Rights (ECtHR). A number of reforms have been made to the ECHR procedural system. As a result, classic texts dealing with the ECtHR have become obsolete as far as the procedural system is concerned, although their treatment of other general aspects of the ECtHR remains of much interest.

Textbooks

The ECHR has been significantly developed and enriched through the years by the extensive and progressive interpretation made by the ECtHR. At present, forty-seven European states are parties to the convention and more than 16.000 judgments have been rendered by the ECtHR, 57 percent of them on violations of the right to a fair trial within a reasonable time. After more than sixty years this immense and precedent-setting jurisprudence has been systematized by a number of authors, who have given a thorough account of the meaning of each convention right as well as the evolution, the main features, and the means used by the European Court when carrying out an adjudication. Each of these manuals on the convention includes a preliminary chapter dealing with the procedural system of protection together with some general remarks on the court itself, which may be useful for an initial approach. The following chapters in some of these textbooks are devoted to an article-by article analysis of the European Court’s case law (e.g., Harris, et al. 2009; White and Ovey 2010, which contains only article-by article coverage). It is also very useful to acquire an overall view of the historical evolution of the convention in order to better situate and evaluate its importance and, in particular, the importance of the court itself during the first decades of its existence and after the first major procedural reforms took place. The following textbooks pursue this key aim. See also Casadevall 2012 and Bates 2010.

• Bates, ed. The Evolution of the European Convention of Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights. Oxford: Oxford University Press, 2010.

  DOI: 10.1093/acprof:oso/9780199207992.001.0001

  NNNBates’ monograph offers an in-depth analysis of the convention’s evolution paying particular attention to the role of the court. The author’s dual view of the ECHR as a tool against totalitarianism and as a European Bill of Rights undergoing constant change provides thought-provoking insights for the reader. The author poses the question as to whether the ECtHR is the Court that states parties intended to create or if it is simply an autonomous European constitutional court.

• Casadevall, Josep. El Convenio europeo de derechos humanos: El tribunal de estrasburgo y su jurisprudencia. Valencia, Spain: Tirant lo Blanch, 2012.

  NNNContrary to most textbooks, this monograph by the ECtHR deputy chair gives key insights into the court from his experience in serving seventeen years as a ECtHR judge. He systematizes the book’s contents in three parts: the court’s institutional role, the procedure and interpretation criteria used by the court, and the main principles established through its case law. The deputy chair’s expertise provides major insights into understanding the essence of both the convention and the court.

• Harris, D. J., M. O’Boyle, and C. Warbrick. Law of the European Convention of Human Rights. Oxford: Oxford University Press, 2009.

  NNNThis textbook’s first key chapter summarizes the background and main features of the ECHR’s protection system, underlying the innovative Strasbourg enforcement machinery and the main role played by the European Court of Human Rights. It also gives some important clues as to how we can better situate the ECtHR in its natural environment from domestic human rights courts of states parties to the convention and its relationship with the European Union.

• White, Robin C., and Clare Ovey. The European Convention on Human Rights. New York: Oxford University Press, 2010.

  NNNFollowing in the wake of the task already completed by Francis G. Jacobs and Robin C. A. White (The European Convention on Human Rights [Oxford: Clarendon, 1996]), this new volume devotes most of its pages to the ECtHR case law and features a first chapter focused on the context and background of, and the institutions set up by, the ECHR. The authors analyze the birth of the convention and the powers and limits of its control organs within a historical context.