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Regional courts
European Court of Human Rights
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was adopted by the Council of Europe in 1950 and entered into force in 1953. Article 3 of the European Convention states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Following the entry into force of Protocol 11 of the Convention on the 1st of November 1998, the European Court now has the sole responsibility for enforcing the rights and freedoms set out in the Convention.
The individual complaint procedure, previously voluntary, is now mandatory for all States party to the Convention, and all victims of torture have direct access to the Court. According to the revised system, the following are the Court’s functions:
(a) Receiving and considering inter-state cases (Article 33, ECHR)
(b) Receiving and considering individual applications (Article 34, ECHR)
(c) Giving advisory opinions on legal questions concerning the interpretation of the Convention and Protocols (Article 47, ECHR)
Any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of the rights set out in the Convention by a Contracting State may lodge an application, in accordance with the prescribed form, with the Court. The Contracting States undertake not to hinder in any way the effective exercise of this right. The Court may only deal with the matter after all domestic remedies have been exhausted, and the application must be received within a period of six months from the date on which the final decision was taken (Articles 34, 35, ECHR).
If the Court is satisfied that an application is admissible, it will proceed to examine the merits of the case. Hearings are adversarial and are held in public unless the Court, in exceptional circumstances, decides otherwise (Article 40, ECHR). During the procedure on the merits, the Court may attempt to negotiate a friendly settlement of the matter between the parties. These negotiations are confidential (Article 38(2), ECHR).
Court judgements are made by a simple majority vote, and are binding. If the Court finds that there has been a violation of the Convention, and if the domestic law of the Contracting State does not contain an adequate remedy for the violation in question, the Court will provide just satisfaction to the injured party (Article 41, ECHR). Written reasons are provided for each judgment (Article 45, ECHR).
The responsibility for supervising the execution of judgments lies with the Committee of Ministers of the Council of Europe. The Committee of Ministers has to verify whether Contracting States judged to have violated the Convention have taken adequate measures to comply with the Court’s judgment.
Examples of cases from the European Court of Human Rights
The Protocol establishing the ACHPR entered into force on 1 January 2004, following its ratification by fifteen member states.
The Protocol provides that actions may be brought before the Court on the basis of any instrument, including international human rights treaties, which have been ratified by the State party in question (article 3.1). Furthermore, the Court can apply as sources of law any relevant human rights instrument ratified by the State in question, in addition to the African Charter (article 7). A peculiarity of the ACHPR concerns the standing of individuals and NGOs. Unlike any other judicial body, advisory opinions can be asked for by not only member States and AU organs, but by any African NGO that has been recognized by the AU, provided that at the time of the ratification of the Protocol or thereafter, the State concerned made a declaration accepting the jurisdiction of the Court to hear such cases. Again, this is another provision that, if the AU recognizes NGOs liberally, might eventually strengthen the ACHPR's promotional function. In the area of contentious jurisdiction, individuals can also bring cases if the above declaration has been made by the State concerned.
Inter-American Court of Human Rights
The Inter-American Court of Human Rights was established by the American Convention on Human Rights (ACHR). It is an autonomous judicial institution of the Organisation of American States empowered to interpret and apply the Convention. Only State parties and the Commission have legal standing to submit a case to the Court (Article 61,1, ACHR).
Before the Court can proceed to hear a case, it must be satisfied that:
(a) The complaint alleges a violation of the American Convention on Human Rights (Article 62 (3) ACHR)
(b) The violation concerns a State party to the American Convention on Human Rights (Article 62(3), ACHR)
(c) The State party concerned recognises the jurisdiction of the Court (Article 62, ACHR)
(d) The complaint has already been examined by the Commission and the State party concerned has failed to comply with the Commission’s recommendations (Articles 48-50, 61, ACHR).
Examples of cases tried at the I
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