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After World War II, the reconstruction of Europe was based on the establishment of institutions promoting and restoring those liberal and democratic values and ideals which, although historically belonging to the culture of European nations, had been seriously damaged by the dramatic events of the first part of the twentieth century. In order to reaffirm those values, construct a common European identity, and ensure that Europe could not commit the tragic errors of the past, these institutions sought to provide a forum for cooperation and understanding between states.
It is in this context that the Council of Europe was set up in 1949, as it clearly results from the preamble to its Statute, where the Contracting States reaffirmed "their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy." Moreover, the aim of the Council is "to achieve a greater unity between its Members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress...through the organs of the Council, by discussion of questions of common concern, and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realization of human rights and fundamental freedoms." The emphasis on human rights and the rule of law was a systemic element of the Council; indeed, article 3 of its Statute clearly imposed the acceptance of these fundamental principles as a basic obligation of all Contracting States, whose breach could ultimately lead to expulsion from the organization. The emphasis on democracy is instead shown by the structure itself of the Council that, together with the Committee of Ministers (i.e. the Foreign Ministers of the Contracting States or their deputies), its executive organ, comprises a Parliamentary Assembly composed of members of the Contracting States' national parliaments.
While the particular attention devoted by the Council to human rights was an important innovation in the context of international organizations, because these were matters traditionally left to domestic jurisdictions, this attention was at that same time becoming widespread on the international law level, as a natural reaction to the horrors of the War. The United Nations had already come into existence and just adopted the Universal Declaration of Human Rights, and the International Committee of Movements for European Unity had started to consider the drafting of a European human rights convention. As a result of this atmosphere, the Council started to work on the European Convention on Human Rights (ECHR), adopted in Rome in 1950.
The radical innovations introduced by the ECHR do not regard the substantive rights protected; indeed, from this point of view not only nothing was added to the rights already included in the Universal Declaration, but also the scope of the Convention was limited to some (although most) of these rights. An overwhelming majority of them are civil and political rights, even if some social and economic rights (e.g. property rights and right to education) have been subsequently introduced in the Convention regime by means of Protocols. This focus on civil and political rights was after all a common feature of the first wave of the human rights movement, which only more recently has paid due account to social and economic rights. However, it must be stressed that, under article 1, the primary obligation of the Contracting States is to "secure to everyone within their jurisdiction the rights and freedoms defined in Section I." Section I is where the substantive rights are listed. Thus, the Contracting States undertake to implement and not to infringe the Convention by giving its substantive provisions full effect within their domestic laws. It is for each of them to determine how to perform this obligation, and incorporation of the Convention is not mandatory, even if this would be the ideal and most straightforward way for the Contracting States to implement it.
What does make the Convention a milestone in the development of human rights and more in general of international law is the creation of a supranational mechanism of control and enforcement of these rights, that is, individuals are afforded a machinery for the implementation of their human rights whenever there is a failure on the national level to protect them. Thus, it may be submitted that the Convention leaves the implementation of the human rights therein included to the domestic jurisdiction of the Contracting States in the first place, and its machinery for the enforcement of such rights is only subsidiary to that of domestic jurisdictions. This structure resulted from the need to compromise between the creation of a supranational mechanism and the desire of the Contracting States to retain their national sovereignty over human rights matters, a desire that fifty years ago was even stronger than today.
The two organs created "to ensure the observance of the engagements undertaken by the High Contracting States" are the European Commission of Human Rights (hereinafter the Commission) and the European Court of Human Rights (hereinafter the Court). However, this structure will change as soon as the Eleventh Protocol comes into force; this protocol replaces these two organs with a permanent Court of Human Rights, which will absorb all the functions currently split between the Commission and the Court, thus de facto merging them. The Permanent Court will operate under a different procedure which considers the institutional changes occurred. Furthermore, there are other two bodies which currently play a very important role, even if they are part of the Council of Europe and were not created by the Convention: the Secretariat and the Committee of Ministers.
The Commission has as many members as the number of Contracting States; members are elected for six years by the Committee of Ministers which selects them from a three names list for each state submitted by the Parliamentary Assembly. In practice, there will be one member per each Contracting State. However, they must act in their independent capacity, be of high moral character, and either possess the qualifications to be appointed to high judicial office in their home state or be recognized experts of national or international law. These criteria are complied with, since all members tend not to be governmental officials and they are mostly eminent and independent judges and scholars. While the Commission started operating in its plenary format, because of the increasing workload the Eight Protocol wisely provided that it could set up Committees of three members and Chambers of at least seven members; there are at the moment two Chambers and six Committees, each taking a share of the workload.
The Court has as many judges as the number of Member States to the Council of Europe. Judges are elected by the Parliamentary Assembly from a list submitted by each of the Members States of the Council of Europe, and again the result is almost invariably that the judge appointed is a national of the state in respect of which he/she has been appointed, and on whose list his or her name was included. Nevertheless, they are and must be independent in the exercise of their functions. The required qualifications are the same as for the members of the Commission. When the Court deals with a case, it normally consists of a Chamber, although there may also be a plenary Court. The functions of the Commission and the Court will be analyzed together with the procedure in the following section.
The proceedings commence with a petition submitted to the Commission but addressed to the Secretary General alleging that a Contracting State has breached the Convention. However, this apparently straightforward passage requires a deep scrutiny. The right of individual petition is enunciated in article 25, which refers to persons, non governmental organizations and groups of individuals. To start with, the Commission may receive petitions from private parties alleging to be the victim of a Contracting State's violation of the rights set forth in the Convention only if the defendant Contracting State has expressly recognized the competence of the Commission to receive such petitions. This means that each Contracting State could limit the competence of the Commission to inter-state petitions, and exclude direct access of private parties to the machinery of the Convention. Similarly, under article 46, a case against a Contracting State can be brought by the Commission or another Contracting State only if the former has submitted a declaration whereby it accepts the jurisdiction of the Court. These options were deemed necessary because the Contracting States wanted to retain control over a mechanism with which they were going to deal for the first time. For the same reasons, acceptance of the jurisdiction of the Convention organs may be limited to a certain period of time. As a general rule, therefore, ratification of the Convention does not per se amount to acceptance of the jurisdiction of the Convention organs, for which an express, specific, and written declaration is required.
However, first all the Contracting States have accepted this jurisdiction, even if they keep limiting it in time so that the renewal may be an instrument of pressure on the two organs not to go too far with the exercise of their powers. Second, the limitation of the jurisdiction can only apply to the time scope, not also to the territorial and subject-matter ones. Third, under article 25, once the competence of the Commission has been recognized, there is an express obligation on the part of the Contracting States not to hinder the private parties' right of petition.
In respect of these general restrictions on the right of individual petition, two differences must be noted between this right and the right of petition of the Contracting States under article 24. In case of inter-state claims, the Commission' competence to receive petitions against a Contracting State from another Contracting State under article 24 derives automatically from the ratification of the Convention, and does not require any declaration. Inter-state claims also have a broader scope than those brought by private parties, because article 24 provides that the former may be brought for any violation of the Convention, while article 25 provides that the latter may be brought only for violations of the substantive rights set forth in the Convention. However, notwithstanding inter-state claims certainly are more comprehensive, the fact itself that the optional character of the Commission's competence has not precluded private parties from bringing their claims before that organ is already a big achievement that enhances the effectiveness of the machinery of the Convention.
Moving to the crucial issue of the admissibility of the claim, here the approach taken by the Convention is certainly that to make the Commission work as a filter of the many petitions it receives, and it may be submitted that, since this function has so far been exercised correctly, such a filter has been an efficient way to rationalize the use of the machinery of the Convention and prevent it from being disrupted by a flood of groundless claims. In the first place, it is the Secretary General that already filters the petitions received. Indeed, whenever the Secretariat is of the opinion that the petition is sure not to be admitted, it shall seek to persuade the petitioner not to register it. However, this may only occur on an voluntary basis, in the sense that the Secretariat shall register the petition if, contrary to its suggestion, the petitioner wishes to proceed.
Articles 26 and 27 set forth the grounds of admissibility of the petition. Before getting there, it must be remembered that article 25 provides what is de facto another ground of admissibility, that is, the requirement that the private party bringing a claim be a victim of the defendant Contracting State's violation of the rights of the Convention. This requirement has to be satisfied for the Commission to have competence ratione peronae. On the other hand, it only applies to private parties' petitions, because article 24, which deals with inter-state claims, only requires that both the state submitting the petition and that complained against be Contracting States, that is, they have ratified the Convention. The rationale for this requirement limited to private parties is to avoid an actio popularis and restrict the legal standing to those private petitioners who have suffered from the breach of the rights accorded in the Convention as a result of the defending Contracting State's action or inaction. However, the Commission has proved quite liberal in interpreting both the concept of "person, non-governmental organization or group of individuals," and that of victim. As to the former, it has interpreted person as meaning both natural and juridical persons. As to the latter, it has admitted petitions from indirect victims, that is, relatives of the direct victim.[118] The general liberal orientation seems to be that petitions will be admitted as long as the petitioner provides reasonable grounds to be a victim.
Article 26 sets forth two grounds of admissibility that apply to both inter-state claims and private parties' petitions. These are: the exhaustion of local remedies and the six-month rules. As to the former, in a system that seeks to be subsidiary to domestic laws and remedies, it is perfectly reasonable to require exhaustion of local remedies before resorting to an expensive and time-consuming supranational remedy like that afforded by the Convention. In particular, it is consistent with the overall Convention-domestic jurisdictions relationship that the "respondent state must first have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the individual."[119] Furthermore, the rule is also consistent with the need to prevent a flood of claims towards the organs of the Convention, which would not have the resources to deal with all of them. Therefore, both the theoretical and the practical arguments traditionally supporting the rule of exhaustion of local remedies in customary international law fit well in the context of the Convention. In accordance with general rules of international law, the Commission case law requires that use be made of effective and adequate remedies that are those "which are capable of providing an effective and sufficient means of redressing the wrongs which are subject of the international claim."[120] The notions of adequate and effective remedies may in the end overlap, but one distinction may be that adequate refers to the abstract possibility of redressing the alleged wrong, while effective seems more related to the capacity of the local remedy to redress in practice the wrong of the specific claim. This determination is also affected by the proper consideration of aspects such as some special circumstances under which, even if the remedy would be effective and adequate, the petitioner could and should be exempted from exhausting it. This and other important general aspects of the rule of exhaustion of local remedies have been already discussed in Part I of the present paper.
However, the Court has observed that article 26 is to be applied with some degree of flexibility and without excessive formalism.[121] It is also peculiar to the ECHR that the petitioner must bear the original burden to prove that local remedies have been exhausted, but when the respondent state is formally informed of the petition and requested to submit observations, it has the burden to prove that its local remedies have not been exhausted.[122] Moreover, the rule has been held applicable to inter-state claims except when the claim refers to the respondent Contracting State' legislation.[123]
The six-month rule provides that the petition is to be submitted within six months from the final decision of the national authority which exhausts the local remedies. The rationale of this rule is "to prevent past decisions from being constantly called into question."[124] Thus, historic claims cannot be brought before the Commission. Problems in respect to this rule mainly regard the determination of the moment of the final decision, while it is clear that it is the introduction of the petition rather than its formal registration which must occur in the six months.[125]
The grounds of admissibility under article 27 only regard the petitions submitted by private parties. These grounds are an additional restriction on access of private parties to the machinery of the Convention, and indeed some of them account for the rejection of a large number of petitions, even more than those rejected under article 26. The relevant grounds are those under article 27(2). However, it would be better to define them as grounds of inadmissibility, because the Convention indicates the situations when the petition cannot be admitted rather than those under which it can. The ground of incompatibility with the Convention is that under which the Commission determines its competence ratione materiae, ratione loci, ratione temporis, and ratione personae. These types of competence are normally distinguished from the grounds of admissibility, but in the case of the ECHR they overlap with the compatibility of the claim with the Convention, except in a case discussed below.
As to the competence ratione personae, the determination is made under article 25, that was discussed earlier. As to that ratione temporis, the Convention expressly provides that, in accordance with the international law of treaties, it has no retroactive effect. Then there would be a problem, since acceptance of the Commission's competence by a Contracting State does not necessarily correspond to the ratification of the Convention, that is when the Convention comes into force vis-à-vis that state. The prevailing interpretation, confirmed by the Commission's case law and by the practice of other international tribunals, is that the declaration accepting the competence is retroactive, in the sense that it relates back to when the Contracting State ratified the Convention.[126] This being the rule, there may nevertheless be exceptions determined by the specific formulation of the declaration which may restrict its temporal scope. Moreover, it has been rightly observed that any retroactive effect is limited by the six-month rule.
As to competence ratione loci, there seems to be an identification of the jurisdiction of the state with its territorial boundaries. However, this identification might extend to all territories the Contracting State controls under a colonial-like rule; ad hoc declaration by the Contracting State is required for this extension, although it has been argued that it would only be necessary for self-governing territories.[127] In addition, a Contracting State is responsible even if the alleged violation takes place outside its territory but it is imputable to it. As to competence ratione materiae, it was earlier noted that there is a difference in scope between the claims which private parties can bring and those which Contracting States can bring; the difference is that the former can only refer to violation of the rights enunciated in the Convention (i.e. the substantive rights of Section I and of some Protocols), while the latter can also refer to violations of any other provision of the Convention or of its Protocols. However, there may well be cases where the right at stake is indirectly protected by the Convention, and the private party should therefore enjoy protection; this will depend on the approach taken by the Commission. Finally, if one considers that article 27 applies to private claims only, it is now possible to see a case where the competence of the Commission does not overlap with the grounds of admissibility. Indeed, when in a inter-state claim the subject matter is outside the scope of the Convention, because for example the violated right is not one covered by the Convention, the petition cannot be declared inadmissible because incompatible with the Convention. This ground of inadmissibility is only applicable to private petitions. Nonetheless, the Commission cannot retain a petition which concerns a right outside the scope of the Convention, and will not admit it by declaring that it has no competence ratione materiae.
Another ground of inadmissibility on which petitions have been often rejected is when they are ill-founded. This is a very broad concept, which inevitably implies an analysis of the merits. Thus this ground is different from the others, because it is one of substance rather than form, and is unusual because issues of substance are not usually considered at the admissibility level. The Commission's application of this ground has been vary. Petitions have been rejected because manifestly ill-founded not only when the petitioner has completely failed to provide any substantive ground for the claim, but also when there is no prima facie case.[128] Perhaps the spectrum has been too broad, since no prima facie violation does not necessarily amount to manifestly ill-founded, but it would more likely amount to ill-founded. In other terms, manifestly should mean that there must be no doubt that the claim is ill-founded and thus does not deserve any further examination because the Court could not find any breach; however, this is a result which is rarely achieved, and it seems that there would often be sufficient doubts about the existence of a violation to make the case admissible and subject to a full examination on the merits. Finally, there is the ground of abuse of the right of petition, which refers to those situations where the petitioner makes improper use of the procedural rights accorded under the Convention.
Two final aspects of this admissibility procedure must be observed. First, it is strictly confidential, and it may or may not involve the respondent state depending on whether the Commission finds grounds of inadmissibility with no need to request observations from that state or not. Second, for economy purposes, when the case is registered, it is assigned to a Commissioner who acts as a Rapporteur; he or she will determine: (i) whether the petition is obviously inadmissible, in which case it will be referred to a three-member Committee for an inadmissibility decision; (ii) or it must be dealt with by one of the Chambers, in which case the report may recommend an inadmissibility decision or communications with the respondent state to obtain additional information relevant for the decision; (iii) or it raises such serious questions affecting the interpretation or application of the Convention that it is to be examined by the plenary Commission. In (i) and (ii), jurisdiction may be relinquished in favor of the plenary commission when the case appears to fall under (iii), as well as the plenary Commission may order them to transfer their jurisdiction to it on those same grounds. Therefore, the Rapporteur' s report and determinations, while are not decisive, may strongly influence the outcome of the admissibility decision.
It has been worth discussing the most peculiar aspects of the individual application or petition procedure since it is evident that the Commission has the task to filter private parties' petitions by means of the admissibility grounds. Because, when the Commission determines that the petition is inadmissible, there is no appeal or other procedure available to the private party to challenge such determination and obtain a consideration of the case by either the Court or the Commission, the way the Commission interprets and applies these grounds is decisive to determine whether private parties may have a satisfactory level of access to the machinery of the Convention. So far, notwithstanding some deserved criticism for some decisions, the Commission has carried out its task in a wise and careful manner. The entrance level of the machinery, however, remains critical as long as the Commission might adopt each of these many grounds of inadmissibility for unduly restrain or preclude private parties' access.
Thus, in determining the admissibility of petitions, the Commission plays a crucial role. And it does so by acting as both an investigative and adjudicative body. Indeed, the Commission can and normally does collect a wide range of detailed data from the parties, either in writing or through oral hearings, in order to make an informed decision after their careful assessment; the complexity of most petitions in terms of both law and fact makes this investigative activity virtually unavoidable. However, this activity also helps once the petition is admitted and is to be decided on the merits by the Commission and eventually by the Court. The Commission acts as a quasi-judicial body when it finally decides on the admissibility of the petition; of course, it must be impartial. Furthermore, once a case is registered and submitted to the Commission's determination of admissibility, the Commission is entitled ex officio to look at all the issues arising from the petition, even those not raised by the parties.
Once a petition is held admissible, the Commission retains the case for further examination of its merits. This is another confidential phase where the Commission acts as both a fact-finder, involving the parties with requests for written submissions or exceptionally oral hearings, and a judicial-like body, because the ultimate result of this examination may be either the issue of a final report finding or not finding a violation of the Convention on the part of the respondent state, or the striking out of the case from the Commission' list on newly found grounds of inadmissibility (or, if in the Commission's opinion, there are reasons whereby further examination is not justified). These are all signs of an impartial and adjudicative function of the Commission, although formally the final report is not a judgment. This report will be the basis for the formal and definitive decision made by either the Court or the Committee of Ministers. Moreover, the Commission may request the respondent state to take provisional measures necessary to protect the petitioner during this phase. States comply with these requests, although they are not legally binding. It may be submitted that, as a result of all these procedural rules, the parties are placed on an equal level before the Commission, which is certainly an important guarantee for the private party.
Alternatively, the outcome may be, and it is strongly encouraged to be, a friendly settlement of the case under the auspices of the Commission, which thus also plays a conciliatory role. The friendly settlement may become a viable outcome depending on the prospected outcome of the claim. The Commission will informally submit to the parties a provisional draft of the final report. At this point, it may be especially in the interest of the respondent state to settle, so that it can avoid either the finding of a violation or in any case bad publicity about its alleged violations. Settlement is a political and bargained outcome, and it may be unsatisfactory or ineffective for the purposes of avoiding or remedying violations of the Convention. Indeed, it distorts the judicial-like function of the Commission or the Court. However, a friendly settlement has to be approved by the Commission, and it is its task to ensure that it takes place in compliance with the Convention and the protection of human rights; this may imply that the respondent state will have to take both specific measures vis-à-vis the petitioner and general measure concerning its laws and procedures. To the extent that the Commission ensures this compliance, settlement may be a suitable alternative which could stimulate cooperation between the Contracting States, avoid confrontational situations, and shield the private party against the pressure of the greater bargaining power of the respondent state. What is missing is instead an adequate mechanism for the supervision of the enforcement of the settlement, similar to that applicable to decisions of the Court or the Committee of Ministers. However, there is an high level of compliance with the terms of the settlement, and in the worst case a new petition may be lodged. Informal settlement of the case may of course be reached at any stage of the proceedings.
Perhaps the aspect which causes more concern in this phase of the procedure is the excessive slowness of the examination of the merits. It may take even two years to conclude this phase. Notwithstanding the availability of provisional measures, this time frame is too long for the private party to obtain a prompt and effective redress of the violation of its rights, and for the Convention to work as an effective mechanism of control of the implementation of human rights in domestic jurisdictions. It is mostly on this extremely serious shortcoming that further reforms of the machinery should focus; indeed, even if under the Eleventh Protocol the Commission will disappear, its critical functions concerning the examination of the merits will be absorbed by the permanent Court. While there will be the significant advantage to avoid the current duplicity of examination of the merits before both the Commission and the Court, which happens in practice although not supposed to happen in theory, the examination of the merits by the permanent Court is likely to continue to take an excessive and intolerable time.
Under the Current structure of the ECHR machinery, once a final report is issued by the Commission, it is submitted to the Committee of Ministers, and there is a three month period during which the case may be brought before the Court. Cases can be submitted to the Court only after examination of their merits by the Commission, and the issue of its final report. Thus, direct access to the Court by skipping the phase before the Commission is precluded.
Before discussing the procedure before the Court, it is of fundamental importance to observe that legal standing of private parties before the court has been a recent conquest on the conventional level. Indeed, the Convention, in addition to making the jurisdiction of the Court optional, which, as said earlier, would allow a Contracting State to preclude not only private parties but also other Contracting States and the Commission from bringing cases against it before the Court, does not confer on private parties any legal standing before the Court. Under article 48, only the respondent and complaining Contracting States, and the Commission, have this standing. This choice was a paradox at least. The Convention emphasized the protection of human rights and the importance of a machinery of supranational control and enforcement, but at the same time it prevented the party most affected by a human rights violation from enjoying the full protection of that machinery. The rationale at the moment of the drafting of the Convention was that the role of private parties was to be a mere vehicle to gather information about such violations through the initial petition, and trigger the mechanism, without any access to the final stage of a claim which had to stay within the exclusive sphere of the Contracting States and the Convention organs. This choice was against the interests of private parties also because it would favor the position of the respondent Contracting State. Indeed, one element of unbalance is already provided by the fact that the petitioner has no means to challenge the Commission's decision of inadmissibility of the petition. Under the original structure of the procedure, the petitioner was also precluded from bringing the case before the Court when the final report of the Commission found no violation or was not satisfactory, standing before the Court to oppose the case brought by the respondent Contracting State when a violation was found, or, still in case of violation, supporting the case brought by the Commission. On the other hand, the Contracting State could resort to the Court when the report found a violation or oppose the case brought by the Commission against it. These restrictions would make the machinery almost meaningless for private parties. Even if the Commission could still bring a case against the respondent State and this case might ultimately redress the alleged wrong suffered by the private party, the absence of such a party from the action before the Court prevented a full consideration of all the elements of the case. For one reason, the private party, together with the respondent State, is the most valuable source of elements of valuation, and its interests and rights are directly at stake. Moreover, the Commission acts as a sort of Advocate General, not as private party's counsel, so that the voice of one of the main actors would be missing or at least not properly represented.
This original structure was first changed through the case load of the Court. In particular, in the Lawless case,[129] the Court acknowledged that:
"when the rights of the individual are directly at stake, it is in the interests of the proper administration of justice that the Court should have knowledge of, and if need be, take into consideration, the applicant's point of view...the Commission has all latitude, in the course of debates and insofar as it believes they may be useful to enlighten the Court, to take into account the views of the applicant concerning either the Report or any other specific point which may have arisen since the lodging of the Report."
While this opening up of the Court to access of private parties was initially strongly opposed by the Contracting States, the opposition did not last long, and subsequent case law developed the practice to have the Delegates of the Commission assisted by the counsel of the private party. The petitioner, step by step, was permitted to make written submissions to the Court trough the Commission, and its counsel could address virtually any issue. This practice led to the revision of the Rules of Court in 1983, expressly permitting the petitioner to participate in the proceedings directly, have separate representation, and interact with the Court. In other terms, it became a de facto party to the proceedings.
However, it was only in 1991 that article 48 of the Convention was amended in order to expressly confer on the petitioner full legal standing before the Court. Private Parties can now refer a case to the Court after consideration by the Commission, but article 5(2) of the Protocol provides that this case is first scrutinized by a three-judge Panel to determine whether it "does not raise a serious question affecting the interpretation or application of the Convention and does not for any reason warrant consideration by the Court", in which case the panel may decide by unanimity that it shall not be considered by the Court. The Panel is thus accorded a wide if not absolute discretion, and direct access of private parties to the Court depends on the way this discretion is exercised, with the possibility that access may be unduly restricted, thus offsetting most of the benefits of the most recent developments. At the same time, the Protocol is of limited practical relevance because it will in any case be superseded by the Eleventh Protocol that provides a different type of access of private parties to the Court. However, it is of fundamental importance that private parties may access the Court directly so that they need not depend on the discretion of their national contracting state or the Commission to protect their rights.
Once a case is brought before the Court, the most important aspect of the proceedings is the broad scope of the Court's jurisdiction. The main risk is a time and resource consuming duplicity of tasks between the Commission and the Court (what the Convention needs the least), and a significant degree of legal uncertainty. To start with, the Court is willing to review the Commission's decision of admissibility. In the Vagrancy Cases,[130] it held that once the case comes within its jurisdiction, it may examine all questions of fact and law which may arise, including those about the admissibility of the petition, even if limited to objections to admissibility already raised before the Commission. This is an overreaching interpretation of the Court's jurisdiction, and against the rationale of the Convention, whose structure clearly confers on the Commission the task to assess the admissibility of claims. It is not sound to reopen this question at a later stage of the proceedings; to do so would disregard the authority of the Commission and further delay the resolution of the dispute. Furthermore, the Vagrancy cases are perhaps the most important indication that, more in general, while the factual report of the Commission should be the sole basis for the case before the Court, the Court has often considered additional issues of fact and law. The former have been those of new facts emerged after the decision of the Commission but representing a continuation of those examined by the Commission.[131] The latter may be those not considered by the Commission, but connected to those it considered. In both cases, even if it must be said that the Court tends to pay a lot of deference to the Commission' determinations, there is room for reopening the issues already considered or for considering new issues, because the criteria adopted by the Court to define the scope of its jurisdiction are certainly too loose. In the end, while the Court should rely on the Commission's final report, it may well be the case that the Court reopens the issues of fact and law already determined by the Commission.
As to the procedure, it is of an inquisitorial rather than adversarial character, and therefore it is for the Court to decide whether and how to request or admit written and/or oral submissions. Again, the jurisdiction is normally exercised by a Chamber, but it may be relinquished in favor of the plenary Court when there are serious issues affecting the interpretation and application of the Convention. There may also be third-party intervention whenever the issue at bar makes it significant. Another aspect of fundamental relevance is the role of the Commission before the Court. Indeed, as mentioned, it acts as an Advocate General, whose opinion must be impartial and independent. Therefore, the Commission cannot advocate the cause of either party, even if its opinions may in the end help one of them to win the case. Finally, although not expressly recognized, the Court has been conferred a conciliatory role to promote a friendly settlement of the dispute.
Its judgments are final and binding, although subject to interpretation or revision upon request by the Commission or the Contracting States. If a violation is found, under article 50 just satisfaction, consisting of monetary compensation, may be awarded. However, it must appear that the petitioner has been injured by the violation and that just satisfaction cannot be obtained or can be only partly obtained by the injured party under the domestic laws and remedies of the respondent state. Just satisfaction is not certainly the ideal redress for violations of human rights. No monetary compensation would often be sufficient. On the other hand, judgments or final reports issued under the Convention put a lot of pressure on the Contracting States to improve their human rights record. This result is itself an element of redress far more important than monetary compensation.
Finally, moving on to the functions of the Committee of Ministers, these are two: under article 32, to decide cases not referred to the Court, either because of the expiration of the three-month deadline or because the respondent Contracting State has not conferred jurisdiction on the Court; under article 54, to supervise the execution of the Court's judgment. In the first case, it is for the Committee to make a decision on whether there has been a violation or not. This decision will be based on the Commission's final report and taken with a two thirds majority. However, first and foremost, even if it acts in a judicial capacity, the Committee is always a political organ that may be sensitive to the political issues of the case to the expense of a prompt and effective protection of human rights. This is not a good prospect for the private party, whose rights may be disregarded not to upset the respondent Contracting State. This risk is somewhat attenuated by the fact that there are few cases of which the Committee is and may be seized, because the jurisdiction of the Court is now unanimously accepted, and it is unlikely that the three-month deadline expires without a party or the Commission referring the case to the Court. Moreover, there has been a certain deference to the Commission's decision. Second, the Committee makes its decision under a procedure that does not ensure an appropriate consideration of all the issues raised and arguments submitted by the parties, since the presence of these procedural guarantees depends on the complete discretion of the Committee. The situation is even worse for private parties, because the Rules of Procedure of the Committee expressly preclude their participation in any form. Finally, neither it is easy to obtain the two-thirds majority nor an alternative to it is provided; this would cause further delay of the resolution of the claim and inefficiency of the whole proceedings. Therefore, decisions by the Committee are likely to provide the worst outcome for the interests of both private parties and the Convention system as a whole.
Either when it finds a violation or when the Court does so, the Committee is responsible for supervising the execution of the decision/judgment by the respondent Contracting State. The main shortcoming, however, is that neither the Court nor the Committee can indicate which measures the Contracting State must take to bring its laws in conformity with the Convention, and supervision is limited to just satisfaction (if there is any). Moreover, failure of the respondent Contracting State to execute the decision/judgment can only lead to political pressure on the part of the Committee, since no sanctions can be decided. Ultimately, this failure may trigger the mechanism of the Council of Europe leading to the expulsion of the Contracting State that continuously fails to protect human rights, since this protection is a basic obligation of the Members of the Council under article 3 of its Statute. In any event, it is clear that the enforcement mechanism for ECHR judgments and decisions is extremely weak, and only political considerations and international pressure can ensure an adequate level of execution. In this regard, it must be observed that indeed this adequate level has been ensured so far, also because the Contracting State still has an obligation of international law to comply with the decisions of the Convention organs.
The Committee of Ministers was conferred these functions under the Convention because the Contracting States wanted to avail themselves of a political-like alternative to the two-tier judicial-like proceedings before the Commission and the Court. Indeed, this organ is the major political interference into the otherwise very rule-oriented and judicial-like supranational control and enforcement mechanism of the Convention. Private parties cannot rely on it for the adequate protection of their rights, especially because it precludes them from any form of participation, which is an intolerable paradox, as seen when discussing legal standing before he Court. The clearly unsatisfactory role of the Committee as to the effective protection and promotion of human rights is however going to be drastically reduced once the Eleventh Protocol comes into force.
In order to rationalize the use of the machinery of the Convention, and to complete the process of judicialization initiated through the case law and the various Protocols, in 1994 the Contracting Parties signed the Eleventh Protocol, which amends the ECHR and will enter into force when ratified by all the Contracting States. This Protocol introduces a set of radical innovations, which focus on the replacement of the current two-tier structure with a one stop structure, that is, a forum which absorbs the functions of both the Commission and the Court and exercises them in a more expeditious, efficient, and effective way. In particular, the constant and burdensome duplicity of functions which characterizes the current work of the two-tier structure, especially as concerns the decision of admissibility and the examination of the merits, should finally be over. This is a situation that could not be stand in the long term; for one reason, the excessive delay incurred by the current proceedings is such that the petitioner in theory entitled to a prompt and effective redress for the wrong allegedly suffered would de facto be deprived of such redress and possibly the injury would even be worsened. Time is a fundamental factor on which redress of human rights violations depends, and an international machinery for the enforcement of human rights would lose most of its reliability if it took too long for affording adequate protection. Paradoxically, the individual's right to expeditious civil or criminal proceedings is itself one of those substantive human rights which the Convention protects and which if violated, can be enforced through its machinery. Moreover, the new institutional and procedural setting will virtually eliminate the elements of political interference present in the current structure, as represented by the availability of the Committee of Ministers as a political and power-oriented forum for decisions on human rights violations. The new mechanism will certainly be much more rule-oriented.
The one-tier structure agreed in the Eleventh Protocol is a compromise between those states which wanted to maintain a two-tier structure by transforming the commission in a court of first instance and the Court in a court of appeal, and those states which instead wanted one institution responsible for one and only one decision. The compromise goes in favor of this second position, because there is indeed only one Permanent Court, but there is nevertheless a form of appeal available. The functions related to the decision on admissibility, whose grounds are unchanged, are exercised by a Committee of three judges including the judge Rapporteur. If not inadmissible, the petition shall be transferred to the Chamber of at least seven judges that shall decide of both the admissibility and the merits of the case. The Chamber may also hear inter-state claims, has a wide range of powers as to fact-finding, and also keeps a conciliatory role by offering its auspices for a friendly settlement. Jurisdiction can be relinquished to the grand Chamber, comprising at least seventeen members, for serious questions arising from the case which affect the interpretation and application of the Convention, or for avoiding the risk of inconsistencies in the Court's case load. The Plenary Court has only administrative functions. The appeal-like procedure is quite unusual and has raised some controversies. Indeed, the party dissatisfied with the Chamber' judgment can seek leave to refer the case to the Grand Chamber, which shall be given by a five-judge panel if there are exceptional circumstances to warrant it. Members of the Grand Chamber shall include the president of the Chamber whose decision is to be examined and the judge of the Contracting State concerned. This last feature is contrary to a principle which the ECHR itself recognizes as a human right, that is, the individual cannot be tried twice by the same judge. Nevertheless, overall the new mechanism promises to be more effective than the current one, also because of the elimination of any decision making power of the Committee of Ministers, which retains only its supervisory functions.
Besides the improvements made to the machinery by the Eleventh Protocol, there are some more general remarks to make. The ECHR affords the individual a unique and overall effective international dispute settlement mechanism, that plays a role subsidiary to the mechanism of protection and enforcement of human rights on the domestic law level. In terms familiar to this paper, it can be said that it is delocalized as concerns both its substantive and the procedural aspects. As to the substantive standards applied by the Convention organs, these are those of the Convention itself, which are international in their nature. As to the procedure, commissioners and judges (judges in the upcoming system) are appointed according to their high level of impartiality, experience, and sophistication. This is an important guarantee for the private party, that is placed on an equal footing with the respondent Contracting State, or at least shielded against the risk of abuse of powers by such a state. The procedure is set forth in the Convention, its protocols, and the Rules of Procedure of the Convention organs, so that it is not shaped according to any national law. Contracting States are not able to exercise any control over the dispute. On the other hand, issues of national sovereignty are adequately taken into account because there is the rule of exhaustion of local remedies, that also contributes to rationalize the use of the supranational machinery, and the whole character of the Convention system is subsidiary to that of national jurisdictions. Moreover, both the Commission and the Court, as well as the new Permanent Court, provide for the presence of the judge from the Contracting State complained against, for the purposes of ensuring the adequate evaluation of the laws of that state and determine whether they violate human rights.
All these elements make the ECHR a model for new or already existing dispute settlement mechanisms in other areas of international law, including the large area of international economic disputes. It would even be better if the substantive scope of the Convention could be enlarged to include more social and economic rights, or to better define and protect those already included, like property rights, which so far have been less justiciable and more likely to be arbitrarily violated by national authorities. However, the ECHR provides a precious and successful experience for those promoting a better protection of the individual on the international law level through the full recognition of substantive and procedural rights. When it came into place, it was an isolated experiment; now it is the most valuable of a collection of jewels, perhaps about to be the first "fully fledged international tribunal" available to individuals.
[118] E.g., see App. 2758/66, X v. Belgium 21 May 1969 (1969) 30 CD 11.
[119] See the Interhandel Case, supra note 35.
[120] JACOBS AND WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS 356 (1995).
[121] Cardot v. France, Digest A 200 para 34 (1991).
[122] Johnston v. Ireland, A 112 para 45 (1986).
[123] Greece v. UK, No 299/57, 2 YB 186 at 192 (1957).
[124] X v. France, No 9587/81, 29 DR 228 (1982).
[125] App. 11763/85, Baner v. Sweden, 9 March 1989, 60 DR 128 (1989).
[126] JACOBS AND WHITE, supra note 112 at 362.
[127] Id. at 363.
[128] Boyle and Rice v. UK, A131 paras 53-53 (1988).
[129] Lawless v. Ireland, A 1 (1960)._
[130] De Wilde, Ooms, and Versyp v. Belgium, A 12 para 78 91971).
[131] Olsson v. Sweden, A 130 paras 54-57 (1988).
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