22.

Europe

International Human Rights Law (3rd

edn)
Edited by Daniel Moeckli, Sangeeta Shah, Sandesh
Sivakumaran, and David Harris

Publisher: Oxford University Press Print Publication Date: Dec 2017

Print ISBN-13: 9780198767237 Published online: Sep 2018
DOI: 10.1093/he/
9780198767237.001.0001

22. Europe

Chapter: (p. 441) 22. Europe

Author(s): Greer Steven

DOI: 10.1093/he/9780198767237.003.0022

Summary

In addition to current trends and challenges, this chapter considers

the origins, historical development, key characteristics, and principal
achievements of Europe’s two pre-eminent transnational
organizations for the legal protection of human rights, the Council of
Europe and the European Union (EU). The Council of Europe’s most
significant institution, the European Court of Human Rights (ECtHR),
is universally celebrated by human rights scholars and activists as the
world’s most successful international human rights tribunal. Yet its
purpose, efficacy, and authority remain in dispute. Similarly, the EU’s
relatively recent but rapidly developing interest in human rights has
been widely welcomed. Yet it also suffers from flaws, particularly a
Page 1 of 33
22. Europe

lack of coherence and consistency. An interdependent, but uncertain,

future seems to lie ahead for both organizations. However, the debate
about the form this should, and is likely to take, has only just begun.

1 Introduction

For two conflicting reasons Europe occupies a central and unique

place in the history of international human rights law. First, it is, together
with the United States, the birthplace of the now global processes of
political, social, legal, and economic modernization which embody,
amongst other things, liberalization, democratization, marketization, and
internationalization. Second, and paradoxically, it was also the site of the
Holocaust and a crucial theatre for the twentieth century’s two world
wars, events that together constituted or precipitated the most systematic
and serious violations of human rights the world has ever seen.

In the second half of the twentieth century, this positive and negative
heritage not only inspired and laid the foundations for international
human rights law itself; it also led to increasing convergence in European
political, constitutional, legal, and economic systems around a common
institutional model formally defined by democracy, human rights, the rule
of law, and the democratically regulated market. These processes now
operate on three principal and overlapping dimensions: European states,
the Council of Europe, and the EU. While this chapter is devoted to the
last two of these, it should be recognized that other international
institutions with a human rights brief, including the United Nations, are
also active across the continent. However, only the Council of Europe and
the EU have legislative and/or judicial functions, essential for the
development of a distinctive European human rights law.

2 The Organization for Security and

(p. 442)

Cooperation in Europe

We should begin by noting that, in addition to the Council of Europe and

the EU, the most prominent pan-European intergovernmental
organization with a human rights brief is the 57-member Organization for
Security and Cooperation in Europe (OSCE), the largest regional security
organization in the world.1 Participating states from Europe, Central Asia,
and North America have equal status and take politically, but not legally,
binding decisions on a consensual basis. The OSCE was established in
December 1994 as a more permanent post-Cold War version of the
Conference on Security and Cooperation in Europe (CSCE), created in the
early 1970s as an ad hoc multilateral forum for dialogue and negotiation
between East and West during the thaw in the Cold War known as
‘détente’. Its main achievements were the Helsinki Final Act, signed on 1
August 1975—which included key commitments on political, military,
economic, environmental, and human rights issues, central to the so-
called ‘Helsinki process’—and the Decalogue, ten fundamental principles

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22. Europe

governing the behaviour of states towards each other and their own
citizens.

At its inception the OSCE was intended to assist in the management of

the post-Cold War transition in Europe. Today its main functions cover the
three core ‘dimensions’ of security: the politico-military; the economic
and environmental; and the human. Within these fields the OSCE’s
activities range across traditional security issues such as conflict
prevention, to fostering economic development, ensuring the sustainable
use of natural resources, and promoting full respect for human rights and
fundamental freedoms. Its four specialist human rights-related agencies
are: the Office for Democratic Institutions and Human Rights (ODIHR),
active in election observation, democratic development, and the
promotion of human rights, tolerance, non-discrimination, and the rule of
law; the Office of the Special Representative and Coordinator for
Combating Trafficking in Human Beings, which supports the development
and implementation of anti-trafficking policies; the Representative on
Freedom of the Media, who provides early warning on violations of
freedom of expression and promotes full compliance with OSCE press
freedom commitments; and the High Commissioner on National
Minorities, who seeks to identify and to resolve ethnic tensions which
might endanger peace, stability, or friendly relations between
participating states.

3 The Council of Europe

The Council of Europe was founded in Strasbourg in 1949 by

ten West European liberal democracies as one of several Cold War
initiatives to promote interdependence, common identity, and collective
security.2 Its main achievements, and the principal focus of this chapter,
were and remain the European Convention on Human Rights (ECHR),
which, amongst other things, established the European Court of Human
Rights (ECtHR). The Council of Europe has also been responsible for over
200 other treaties on a wide range of issues, three of the most important
of which—the European Social Charter, the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, and the European Framework Convention for the Protection
of National Minorities—are considered in Section 3.3. But first, the
Council’s origins and key institutions will be reviewed.

(p. 443) 3.1 Origins

At the core of the political history of Europe in the nineteenth and

twentieth centuries is the story of the formation of nation-states and their
struggles between competing conceptions of themselves—liberal or
authoritarian—and their battles with each other. By the end of the
twentieth century three main lessons, both for human rights and for
international peace, had become clear. First, competitive European
nationalism, unrestrained by effective international institutions, is likely
to result in massively destructive international armed conflict. Second,

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22. Europe

the attempt after the First World War to protect national minorities and to
secure European peace by establishing a collective complaints procedure
to the League of Nations had failed.3 Third, liberal democracies with
regulated capitalist economies committed to the rule of law and
constitutional rights are essential not only for national prosperity and
justice but also for international peace.

Therefore, as the Second World War drew to a close, proposals for

increased European collaboration were debated by the Western allies
including the United States. Towards the end of 1948 the governments of
Belgium, France, and the United Kingdom agreed to establish a Council
of Europe and invited Denmark, Ireland, Italy, Norway, and Sweden to
participate in the negotiations. Luxembourg and the Netherlands joined
later. At its foundation, the Council had four main objectives: to
contribute to the prevention of another war between West European
states; to provide a statement of common values contrasting sharply with
Soviet-style communism, hence the almost exclusive emphasis on civil
and political rights in the ECHR; to re-enforce a sense of common identity
and purpose should the Cold War become an active armed conflict; and to
establish an early-warning device by which a drift towards
authoritarianism in any member state could be detected and dealt with by
complaints from other states to an independent transnational judicial
tribunal. This early-warning function was also itself inextricably linked to
the prevention of war, since the slide towards the Second World War
indicated that the rise of authoritarian regimes in Europe made the peace
and security of the continent more precarious. The Council of Europe’s
founding statute contains several core principles. Certain unspecified
‘spiritual and moral values’—‘the cumulative influence of Greek
philosophy, Roman law, the Western Christian Church, the humanism of
the Renaissance and the French Revolution’4—are said to constitute the
‘common heritage’ of the signatory states, to be the ‘true source of
individual freedom, political liberty and the rule of law’, and to form the
‘basis of all genuine democracy’. ‘Closer unity’ between like-minded
European states is also deemed to be required in order to implement
these principles and to promote ‘economic and social progress’.5

3.2 Key institutions

In addition to the ECtHR, considered in Section 4, the Council of Europe’s

key institutions are the Committee of Ministers, the Parliamentary
Assembly, the Secretariat, the European Commissioner for Human Rights,
the Congress of Regional and Local Authorities, and the Conference of
International Non-Governmental Organizations.

The Committee of Ministers—the executive and formal policy and treaty-

making body which also supervises execution of judgments of the ECtHR
—consists of the foreign (p. 444) ministers of member states who usually
meet in Strasbourg once a year at ministerial level for a day or two half-

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22. Europe

days. Their Deputy Permanent Representatives also meet once a week in

plenary session and several times a week in subsidiary groups.

The Parliamentary Assembly of the Council of Europe (PACE) has 324

members (plus a further 324 substitutes) elected on a proportional basis
by, and from, national parliaments. It meets four times a year in
Strasbourg’s Palais de l’Europe, which it shares with the European
Parliament, the parliamentary body of the EU. PACE’s chief functions are
to make recommendations, to pass resolutions, and to express opinions
about, and to monitor state compliance with, Council of Europe policy. It
also appoints the European Commissioner for Human Rights, the
Secretary-General and Deputy Secretary-General of the Council of
Europe, and selects judges for the ECtHR from the lists of three
candidates presented by each member state. It has no legislative powers.

The Secretary-General presides over the Secretariat, the Council of

Europe’s bureaucracy, and also has some formal responsibilities with
respect to the ECHR. The post of European Commissioner for Human
Rights—not to be confused with the now defunct European Commission of
Human Rights (see Section 4.2)—was created in the Secretariat by a
resolution of the Committee of Ministers in 2000 to promote education
and awareness of human rights in member states, including collaborating
with national and international human rights institutions and
ombudsmen, identifying human rights shortcomings in national law and
practice, and promoting effective observance of all Council of Europe
human rights instruments. As part of the general monitoring
responsibility the Commissioner can also receive individual complaints
but can neither adjudicate nor present them before any national or
international court. ECHR Protocol No 14 enables the Commissioner to
submit written comments to the ECtHR and to take part in Chamber and
Grand Chamber hearings on his own initiative. By March 2017 there had
been 14 interventions of this kind.6

Drawn from local and regional representatives, the principal function of

the 324-member Congress of Local and Regional Authorities (plus a
further 324 substitutes) is to advise the Committee of Ministers, PACE,
and member states on a wide range of local and regional issues. The 400
or so NGOs with participatory status at the Council of Europe meet four
times a year at the Conference of International Non-Governmental
Organizations, an official Council of Europe institution, constituting civil
society’s contribution to the Council of Europe’s ‘quadrilogue’ with the
Committee of Ministers, PACE, and the Congress of Local and Regional
Authorities.

It is unclear whether the Council of Europe could be said to have an

overall human rights policy beyond the general one of drafting treaties
and other documents and promoting state compliance with them. Nor is it
clear which institution is most influential in policy formation. Some
insiders claim policy is initiated by states, others that it originates in the
various committees of the Secretariat, while still others believe the goals
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22. Europe

and agendas of particular individuals are central. However, it is widely

acknowledged that integration and coordination between the activities of
the Council’s many different agencies and institutions could be improved.
While some insiders consider that PACE has the greatest legitimacy
regarding the formation of human rights policy—particularly as it consists
of members of national legislatures—others believe that, when it comes to
identifying priorities, the European Commissioner for Human Rights has
more.7

(p. 445) 3.3 Key instruments

As already indicated, while the ECHR, considered in Section 4, is the

Council of Europe’s principal achievement, three of its many other
treaties—the European Social Charter, the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, and the European Framework Convention for the Protection
of National Minorities—also warrant brief discussion.

Among other differences between the ECHR and the European Social
Charter 1961 (revised in 1996),8 several are particularly worthy of note.
First, the ECHR contains mostly civil and political rights whereas the
Charter contains a catalogue of social and economic rights, including
those relating to housing, health, education, and work. Second, accession
to the Charter, unlike the Convention, is not a condition of Council of
Europe membership. To date, 43 of the Council’s 47 states have signed
and ratified the original Charter, the revised version, or both. Third,
states can choose not to accede to certain nominated Charter provisions.
Fourth, while the ECHR applies to all persons within the jurisdiction of
member states, the Charter only applies to citizens of states parties and
to their nationals lawfully resident or working regularly within the
territory of the state concerned. Fifth, the Charter has no judicial
institutions or processes, nor, sixth, a right of individual complaint.
Compliance is instead monitored in two ways by the 15 independent and
impartial expert members of the European Committee of Social Rights
(ECSR). Under the reporting procedure the ECSR publishes its
‘conclusions’ every year based on annual state self-assessment reports. If
the Committee of Ministers is dissatisfied with a state’s response, guided
by a Governmental Committee comprising representatives of Charter
states and observers from European employers’ organizations and trade
unions, it can make appropriate resolutions and recommendations.
Second, under a complaints procedure provided by an optional protocol
adopted in 1995, ratified or acceded to by 15 states parties so far, the
ECSR can also make decisions on applications—119 from 1998 to 20159—
received from employers’ organizations, trade unions, and NGOs, which
in turn may provide the basis for recommendations by the Committee of
Ministers. Levels of compliance with both reporting and complaints
processes are difficult to determine. Benelhocine claims that states
generally respond positively to findings of violation including amending
legislation if necessary.10 However, as De Schutter and Sant’Ana point

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22. Europe

out, it is ‘patently clear that findings of non-compliance can be ignored by

the State with little cost’.11

The European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment 1987 (ECPT), amended in 2002,
aims to ‘strengthen by non-judicial means of a preventive nature’,12 the
right of everyone detained by a public authority in a member state not to
be subjected to torture or to inhuman or degrading treatment or
punishment. It seeks to do so by providing an enforcement regime based
on unannounced visits to places of detention, particularly those holding
vulnerable people, by delegations from the 47 independent and impartial
expert member European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, one per state party to
the ECPT.13 The Committee is obliged to inform states of its intention to
visit, but not of the precise locations chosen for inspection. While all
states are subject to periodic missions every (p. 446) four to six years, the
Committee can, at its own discretion, visit on an ad hoc basis and make
‘rapid reaction interventions’, typically if prompted by concerns
expressed by individuals, groups, or other state parties that ill-treatment
is a problem in the state concerned. Since the purpose of visits is to
initiate constructive dialogue with states, missions end with the
delegation conveying preliminary impressions to officials in the
expectation of a response to the subsequent report. Although formally
confidential, publication of reports has become the rule rather than the
exception. If, following ‘high level talks’, a state fails to cooperate or to
improve defects in compliance with the ECPT to which its attention has
been drawn, the Committee can ‘make a public statement’. Up to July
2017 this had happened only eight times—with respect to Russia (three
times), Turkey (twice), and Greece, Belgium, and Bulgaria (once each).14
Confidential reports are also submitted to the Committee of Ministers and
follow-up visits can assess progress. Now a condition of Council of Europe
membership, the ECPT has been signed and ratified by every member
state. Collectively the Committee’s recommendations form ‘part of a
dynamic corpus of standards’.15 However, although these and the
Committee’s other activities have influenced states and affected other
standard-setting instruments, such as the European Prison Rules, it is not
clear if the ECPT has had any significant direct impact on the prevention
of torture or the ill-treatment of detainees.16

Prompted in the 1990s by the ‘shock of interethnic violence that afflicted

Eastern Europe with the unfreezing of the Cold War’, the Framework
Convention for the Protection of National Minorities 1995 marks a
departure from the Council of Europe’s commitment to individual rather
than collective rights.17 The term ‘Framework’ indicates that the
principles in question are not directly applicable in national legal systems
but require implementation through legislation and national public policy.
The Framework Convention aims to ensure that states respect the rights
of national minorities and facilitate the protection and development of
their culture and identity, including by combating discrimination,

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22. Europe

promoting equality, guaranteeing certain freedoms in relation to access to

the media, minority languages, and education, and encouraging
participation by national minorities in public life. The Committee of
Ministers monitors national compliance with the assistance of an
appointed Advisory Committee, of between 12 and 18 independent and
impartial experts,18 which examines the reports states are required to
submit at five-yearly intervals or when the Committee of Ministers so
requests. Countries may also be visited and meetings held with state
officials. Although the Advisory Committee does not deal with individual
complaints, it may, nevertheless, receive information from individuals and
other sources such as NGOs. In the light of the Advisory Committee’s
opinion, the Committee of Ministers makes its final decision (‘conclusion’)
concerning implementation by any state party. Where appropriate, it may
also make recommendations. Conclusions, recommendations, the
Advisory Committee’s opinions, and any comments by the state concerned
are made public. By 2017 the Framework Convention had been signed
and ratified by 39 of the Council of Europe’s 47 member states. Assessing
the effectiveness of the Framework Convention is next to impossible, not
least because of its programmatic nature and because the term ‘national
minority’ is not formally defined.

4 The European Convention on Human

(p. 447)

Rights

The Convention for the Protection of Human Rights and Fundamental

Freedoms (more commonly known as the ‘European Convention on
Human Rights’ or ‘ECHR’) was drafted by the Council of Europe in 1950
and entered into force in 1953. Its ratification has been a condition of
membership of the Council of Europe since the beginning. The
Convention’s central objective is to provide an independent judicial
process at Strasbourg which can authoritatively determine whether a
Convention right has been violated by a given member state. This section
considers the substantive rights the Convention contains, reviews the
establishment and development of its key institutions and processes,
describes the current inter-state and individual applications processes,
discusses the resolution of complaints by friendly settlement and
adjudication of the merits, and finally outlines how the Committee of
Ministers supervises the execution of the Court’s judgments.

4.1 Substantive rights

The ECHR is similar in content to other international and national

instruments dealing with civil and political rights, particularly the
International Covenant on Civil and Political Rights. Article 1 requires
member states ‘to secure to everyone within their jurisdiction’ the rights
and freedoms the Convention contains. Articles 2 to 13 provide the rights:
to life; not to be subjected to torture or to inhuman or degrading
treatment or punishment; not to be held in slavery or servitude or to be
required to perform forced or compulsory labour; to freedom from
arbitrary arrest and detention; to a fair trial; not to be punished without
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22. Europe

law; to respect for private and family life, home, and correspondence; to
freedom of thought, conscience, and religion; to freedom of expression; to
freedom of assembly and association; to marry and to found a family; and
to an effective national remedy for the violation of a Convention right.
Article 14 states that the enjoyment of any Convention right shall be
secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth, or other status.
Article 15 enables all but a handful of rights to be suspended ‘in time of
war or other public emergency threatening the life of the nation’,
provided such ‘derogations’ are ‘strictly required by the exigencies of the
situation’ and are not incompatible with the state’s other international
legal obligations. Article 16 provides that nothing in Articles 10, 11, and
14 shall be regarded as preventing restrictions on the political activities
of aliens. Article 17 prohibits the ECHR from being interpreted to imply a
right to engage in any activity, or to perform any act, aimed at the
destruction of any Convention right or freedom, or its limitation to a
greater extent than the Convention itself permits. Article 18 limits
restrictions upon rights to purposes the ECHR itself expressly provides.

Sixteen subsequent protocols have either added further rights or

reformed procedure and/or institutions. The former are optional and
usually come into effect when the formalities have been completed by a
specified number of states. Protocol No 1, for example, contains rights to
education, the peaceful enjoyment of possessions, and free elections,
while Protocol No 4 provides the right not to be imprisoned for debt, the
right to freedom of movement, the right of nationals not to be expelled
from the state to which they belong, and the right of aliens not to be
collectively expelled. Protocol No 6 abolishes the death penalty except in
time of war. Protocol No 7 contains procedural safeguards regarding the
expulsion of aliens, the right of appeal in criminal proceedings, the right
to compensation for wrongful conviction, the right not to be tried or
punished twice in the same state for the (p. 448) same offence, as well as
the equal right of spouses under the law. Protocol No 12 outlaws
discrimination in relation to any right ‘set forth by law’, in contrast with
Article 14 ECHR which prohibits discrimination only with respect to
Convention rights. Protocol No 13 outlaws the death penalty even in time
of war. Once a universal procedural protocol comes into effect, its
provisions are seamlessly incorporated into the revised text of the
Convention and it loses its separate identity. Protocols 14–16 are
discussed in the following section.

4.2 Institutional and procedural background

At its inception it was agreed that the Convention’s main modus operandi
would be complaints brought by states against each other (the ‘inter-
state’ process). Some members also chose to permit individual
applications before this became compulsory in 1998. The ECHR was at
first, therefore, much more clearly about protecting the democratic
integrity of member states through the medium of human rights, and
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22. Europe

promoting international cooperation between them, than it was about

providing individuals with redress for human rights violations by national
public authorities.

When it was first established, the Convention system had three main
institutions. The European Commission of Human Rights was the first
port of call for both state and individual applicants. It ascertained the
facts, determined if the admissibility criteria were satisfied, and explored
the possibility of friendly settlement. If this could not be secured, the
Commission expressed a non-binding opinion concerning whether or not
the Convention had been violated. Then, providing the jurisdiction of the
ECtHR—the second institution which began operating in 1959—had been
accepted by the state or states concerned, the case could be referred by
the Commission, the respondent state, or the state of which the applicant
was a national—but not by individual applicants themselves—to the Court
for a legally binding decision. The Committee of Ministers, the third
institution, also decided cases over which the ECtHR did not have
jurisdiction and those the Commission did not refer to the Court. Both the
Commission and the ECtHR were then staffed by part-time judges.

For most of its first 30 years the ECHR had very little impact on victims of
human rights abuses and was almost entirely ignored by lawyers,
politicians, jurists, and other commentators. Only 800 or so individual
applications were received by the Strasbourg institutions per year. But
from the mid-1980s onwards things began to change dramatically. First, it
became clear that inter-state complaints—about two dozen in the
Convention’s entire history19—were largely a dead letter, not least
because litigation is a hostile act in most circumstances and, therefore,
not an ideal vehicle for cultivating international interdependence.
Second, in sharp contrast, the rate of individual applications began to rise
steeply, reaching crisis proportions by the late 1990s and between 2000
and 2016 inclusive, a total of 741,100 individual complaints were formally
received (‘allocated to a judicial formation’), an annual average of
43,594.20

The exponential rise in the individual application rate since the late 1990s
was due partly to the third significant change: the huge expansion in the
number of Council of Europe states, from a mere ten in 1950 to 46 by the
end of the 1990s to 47 with a combined population of 820 million—
including all former communist states of Central and Eastern Europe
except Belarus—by the beginning of the 21st century. A fourth change,
and also a key factor in the rising application rate, is the fact that the
ECHR is now much better known by lawyers and by the general public
throughout Europe than hitherto.

(p. 449) In response to the mushrooming application rate, the judicial

process was reformed by Protocol No 11, effective from 1 November

1998. The European Commission of Human Rights was abolished and the
restructured Court became a professional full-time institution with
responsibility for the formal receipt of complaints, ascertaining the facts,
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22. Europe

deciding if the admissibility criteria were satisfied, seeking friendly

settlement, delivering legally binding judgments, and issuing advisory
opinions at the request of the Committee of Ministers.21 Protocol No 11
also stripped the Committee of Ministers of its power to settle cases on
the merits, a responsibility deemed incompatible with the now enhanced
judicial character of the complaints processes. The role of the Committee
of Ministers is limited now to supervising the execution of the Court’s
judgments. Both the right of individual petition and acceding to the
Court’s jurisdiction also became compulsory, although by the 1990s each
had already been voluntarily endorsed by all member states.

However, by 2000, Protocol No 11 was already officially recognized as

inadequate, not least because the consequences of the post-communist
enlargement had not been adequately anticipated. In May 2004 another
modest reform package, Protocol No 14, was unanimously approved by all
states parties. The most significant changes were to the applications and
enforcement of judgments processes (see Section 4.3). But by early 2005
it was becoming increasingly doubtful if these would make much
difference to the rising tide of complaints. So, in May 2005, a Group of
Wise Persons was appointed to make further proposals. However, their
report, made public in November 2006, contained nothing substantially
new, largely recycled ideas already rejected in the course of the Protocol
No 14 debate, and assumed that the new protocol would soon come into
effect.22 But in December 2006 the Russian parliament refused to ratify
it, ostensibly because of objections to admissibility decisions being made
by ‘single-judge formations’. The Council of Europe, therefore, provided
an interim set of optional measures, Protocol No 14bis, intended to apply
to the other 46 states. In the meantime, the Registry began to take a
more robust approach to the receipt of petitions, including by providing
an online admissibility checklist and by adhering more strictly to time
limits.23 The ECtHR also sought to manage its workload by prioritizing
applications according to their seriousness and urgency. However,
following its unexpected ratification by the Russian parliament in January
2010, Protocol No 14 came into effect for all 47 Council of Europe states
on 1 June that year.

But this did not, by any means, conclude the debate about reform.
However, rather than address the more challenging, controversial, and
fundamental issues of purpose and function, various proposals for further
micro-bureaucratic changes were considered by the Council of Europe at
a series of High Level Conferences on the Future of the ECtHR held in
Interlaken in 2010, Izmir in 2011, Brighton in 2012, and Brussels in 2015.
A 15th Protocol was opened for signature on 24 June 2013. When it
comes into effect this will require candidates for appointment to the
ECtHR to be under the age of 65 when the three-person lists are
requested by PACE, abolish the right of parties to veto relinquishment of
litigation to the Grand Chamber, shorten from six to four months the time
limit within which applications to the Court must be made from the last
decision by the national legal system on the matter, include a reference to

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subsidiarity, the margin of appreciation, and Strasbourg’s supervisory

jurisdiction in the preamble to the Convention, and remove the
requirement from Article 35(3)(b) ECHR (p. 450) that an application must
have been ‘duly considered by a domestic tribunal’ before it can be
rejected as inadmissible on the grounds that the applicant has suffered
‘no significant disadvantage’. A further optional protocol, No 16—which
permits national courts to request, in ongoing litigation, discretionary,
non-binding advisory opinions from the Grand Chamber regarding
matters of principle relating to the interpretation and application of
Convention rights—was adopted by the Committee of Ministers on 10 July
2013 and opened for signature on 2 October 2013.

4.3 Complaints procedures

4.3.1 Inter-state applications

The inter-state applications process is set out in Figure 22.1. Although

very infrequently used, and less than a resounding success in correcting
alleged violations, it is not yet totally moribund and can have
considerable symbolic significance.24 For example, in 2009 and 2011
respectively, complaints made by Georgia against Russia—the former
concerning multiple alleged violations of the Convention rights of
Georgians living in the Russian Federation and the latter connected with
the armed conflict between the two states in 2008—were ruled admissible
by the Court.25 Ukraine has also lodged four applications against Russia
concerning events in Crimea and eastern Ukraine, one of which was
struck off the Court’s list on 1 September 2015 when the Ukrainian
government decided to no longer pursue it.26 On 15 September 2016,
Slovenia also petitioned the Court alleging violations of the rights to fair
trial, to peaceful enjoyment of possessions, and to an effective remedy on
the part of the Croatian courts and executive with respect to the
attempted recovery of debts from Croatian companies by a Slovenian
bank following the disintegration of the former Yugoslavia.27

Under the inter-state process an applicant state lodges a complaint

against a respondent state with the Registry, which can initiate the
friendly settlement procedure at any stage of the proceedings (see
Section 4.4.1). Having received an application, the Registry informs the
President of the ECtHR who notifies the respondent state and allocates
the complaint to one of the Court’s five Sections. A seven-judge Chamber,
including the judges elected with respect to applicant and respondent
states and capable of being reduced to five by the Committee of Ministers
at the Court’s request, is then convened to consider admissibility. The
requirements are much less exacting than those for individual petitions.
The ECHR must have been binding on all state parties to the litigation,
and applicable to the persons concerned within the jurisdiction of the
respondent state at the material time and place. Except where the
allegation concerns judicial proceedings or an ongoing administrative
practice, all domestic remedies must have been exhausted. The
application must also be deposited with the Court within a period of six
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months (four months when Protocol No 15 takes effect) from the date on
which the final decision on the relevant subject matter was taken in the
respondent state’s legal system. While a formal prima facie case is not
required, inter-state applications will be rejected as inadmissible if the
allegations concerned are wholly unsubstantiated. The processes of
friendly settlement, judgment of the merits, and the roles of the Court’s
Grand Chamber and the Committee of Ministers are substantially the
same as under the individual applications process as amended by
Protocol No 14 (see Sections 4.4 and 4.5).

(p. 451)

Figure 22.1
The inter-state applications process

4.3.2 Individual applications

Under Protocol No 11 the management of formal applications was the

responsibility of a Judge Rapporteur assisted by a Registry case-
processing lawyer. The Judge Rapporteur examined and prepared the file,
including requiring documents and further particulars from the parties,
and channeled the complaint for an admissibility decision—together with
proposals about its disposal—either to a three-judge committee, if it
appeared to be clearly inadmissible, or to a Chamber of seven judges if its
inadmissibility was not so clear. Under Article 28 ECHR a committee
could, and still can, unanimously declare an application inadmissible, or
strike it off the list, ‘where such decision can be taken without (p. 452)
further examination’,28 a fate which, pre-Protocol No 14, typically befell
between 80 and 90% of applications rejected as inadmissible or struck
off.29 Cases which could not be settled unanimously were referred to a
seven-judge Chamber for a decision about admissibility and judgment on
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the merits. A report from the Judge Rapporteur summarized the facts,
indicated the issues raised, and proposed what should happen next, for
example a decision against admissibility or further correspondence with
the parties.

Protocol No 14 alters this process in several ways (see Figure 22.2).

First, it is now possible for the friendly settlement procedure (see Section
4.4.1) to be initiated by the Registry at any stage of the proceedings and
not just post-admissibility as before. Second, all formal applications are
allocated, initially for a decision about admissibility, by ‘non-judicial
rapporteurs’ from the Registry to: a ‘single judge formation’ comprising a
judge and non-judicial rapporteur, to three-judge committees, or to seven-
judge Chambers. The judge elected with respect to a particular state is
not permitted to sit on a single-judge formation hearing applications
against that state. While the rapporteur manages the file containing all
relevant documents, the judge can, as already indicated, reject as
inadmissible, or strike off the Court’s list, the vast majority of applications
(where such a decision can be taken without further examination), and
direct the remainder to a committee or Chamber.

The Court’s statistics show a sustained and significant increase in the

number of cases rejected at the filtering stage since the single judge
procedure came into effect. For example, in 2012, 48,350 of the 65,150
formal applications, deemed likely to be declared inadmissible, were
allocated to a single judge formation with the remainder referred to
Chambers or committees.30 The total number declared inadmissible or
struck off the list (86,201) constituted a 70% increase from the previous
year, while those disposed of in this manner by single judge formations
increased by 74%.31 In 2009 the Court amended Rule 41 of the Rules of
Court requiring it to ‘have regard to the importance and urgency of the
issues’ raised by a particular application, distinguishing seven categories
by reference to specified criteria published in November 2010.32 Given
refusals by the Council of Europe and states, supported by NGOs, to
countenance any significant modification to the right of individual
petition, a ‘priority policy’ was, without doubt, the most effective
response the Court itself could make to its burgeoning caseload. But,
while the right to individual petition has, in fact, been formally preserved
by these developments, it has nevertheless been undermined by them. As
a consequence of having been sent indefinitely to the back of the queue,
‘large numbers of applications will not, in practice, be examined’,33
resulting in ‘a structural denial of justice for certain categories of
meritorious applicants whose cases cannot be handled’.34

From the late-1990s to the mid-2010s, the escalating application rate also
created a huge backlog in complaints awaiting decisions on admissibility
and judgments on the merits. But by the end

(p. 453)

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Figure 22.2
The individual applications process

(p. 454)of 2015, Protocol No 14, the priority policy, and the stricter
approach to the receipt of complaints, at last seemed to be reducing the
scale of this problem. In 2014 the number of applications allocated to a
judicial formation fell from an all-time high of 65,800 the previous year, to
56,200, dropping further in 2015 to 40,600, while the backlog of those
awaiting a decision also declined, from an historic peak of 151,600 in
2011, to 69,900 in 2014 and to 64,850 in 2015.35 Between November
1998 and December 2010 only 3.8% of applications allocated to a judicial
formation were declared admissible.36 But between 2000 and 2016
inclusive this figure had increased to just under 14%.37 However,
although it is too early to say whether they constitute merely a temporary
blip or the beginning of a new phase, the figures for 2016 also show
significant reversals in some of these trends. For example, by the end of
2016, the number of applications allocated to a judicial formation rose to
53,500.38 Of a total caseload of 79,750 applications, 1.1% were classified
as urgent (Category I), 0.4% concerned issues capable of impacting upon
the effectiveness of the Convention system or raised important questions
of general interest (Category II), 23.6% prima facie gave rise to issues
under Articles 2, 3, 4, or 5(1) ECHR as their main complaint (‘core rights’,
Category III), 26.5% were potentially well founded on other provisions
(Category IV), 43.6% were repetitive and had already been dealt with in a
pilot or leading judgment (Category V), and 4.8% gave rise to a problem
of admissibility (Category VI) or were manifestly inadmissible (Category
VII).39 Of those cases pending by the end of January 2017, 30,500 were
repetitive, almost 11,500 were ‘priority’ (Categories I-III),40 and some
21,000, which according to the ECtHR’s Annual Report 2016 constitute
‘the greatest weight’ on the Court’s docket, were neither clearly
inadmissible nor repetitive.41 The Court has itself declared that, although
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more priority applications are being processed and adjudicated than

before, ‘this will not be sufficient’ for ‘substantial inroads’ to be made
‘into the backlog of Chamber cases’, and that further reflection on ‘new
working methods and approaches to further streamline the proceedings
for different categories of applications’ will be required.42

Protocol No 14 preserves the existing admissibility tests and adds a new

one. As before, individual applications can be ruled inadmissible if the
applicant was not a victim of a Convention violation, redress has not been
sought through the national legal system as far as it could have been
(‘exhaustion of domestic remedies’), more than six months have elapsed
between the last national decision on the matter and formal application to
Strasbourg (to be reduced to four by Article 4 Protocol No 15), the
complaint is substantially the same as one already examined, it is
incompatible with the Convention, it is an abuse of process, and/or is
‘manifestly ill-founded’, that is, patently has no hope of being settled in
the applicant’s favour. Protocol No 14 also enables the Court to reject as
inadmissible complaints by applicants where no significant disadvantage
has been suffered, provided the issue has been ‘duly considered’ by a
domestic tribunal and there are no other human rights reasons for
admitting it.43 Until 2012 this test could only be applied by Chambers and
the Grand Chamber, and in 2015 only 0.1% of the cases declared
inadmissible were disposed of in this manner.44 As already indicated, the
‘duly considered’ requirement will be abolished when Protocol No 15
comes into effect.45

Under Protocol No 14, unanimous committees of three judges are

(p. 455)

now able simultaneously to settle admissibility and the merits of those

applications which, according to well-established Convention case law,
disclose clear-cut violations. A three-judge committee may include the
judge elected with respect to the respondent state, particularly when the
exhaustion of domestic remedies is at issue. While states may contest
recourse to the committee procedure, they cannot veto it.

Protocol No 14 also preserves the Court’s power to strike an application

off its list if the applicant does not intend to pursue it, the matter has
been resolved (for example, by friendly settlement), or where, for any
other reason, further examination is no longer considered necessary.
Legal aid is available for individual applicants lacking sufficient means.

4.4 Resolution of complaints

All admissible inter-state and individual applications—provided they have

not been struck off or settled summarily by three-judge committees—are
resolved either by friendly settlement or full adjudication of the merits.

4.4.1 Friendly settlement

The ECtHR (in practice the Registry) can facilitate and advise about the
terms of friendly settlement, which is open to the parties on the basis of
respect for human rights at any stage of the proceedings. In individual
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cases friendly settlements typically involve offers of money by the

respondent state, some other benefit (for example, a residence permit the
applicant claims to have been deprived of by the alleged violation), and
sometimes an undertaking to make legislative or policy changes. Between
1959 and 2016 friendly settlement/striking out judgments accounted for
only 5.6% of the total number of judgments (1,094 out of 19,570).46

4.4.2 Adjudication on the merits

Most admissible applications not resolved by friendly settlement, struck

off for other reasons, or settled by committees simultaneously with the
decision on admissibility, are judged on the merits by Chambers of seven
judges. However, subject to the consent of the parties (a requirement to
be abolished when Article 3 Protocol No 15 comes into effect), a Chamber
may relinquish jurisdiction to a Grand Chamber of 17 judges where the
application raises a serious question affecting the interpretation of the
ECHR or where there is a prospect of a departure from previous case law.
However, this is extremely rare.47 Between 1959 and 1999 fewer than
1,000 judgments were rendered.48 Yet, by the end of 2016, the figure had
risen to a total of 19,570.49 Between 2000 and 2016 the Court delivered
an annual average of 1,092 judgments, including 695 in 2000, the year
with the fewest within this timeframe, and 1,625 in 2009, the year with
the most.50 84% of judgments and 92% of cases judged on the merits
result in a finding of at least one violation.51 Only a handful of provisions
are (p. 456) regularly found to have been breached. From 1959–2016 over
84% of violations concerned only five provisions: the right to fair trial
under Article 6 (40.32%, 21.34% of which concerned length of
proceedings), the right to liberty and security under Article 5 (12.86%),
the right to peaceful enjoyment of possessions under Article 1 of Protocol
No 1 (11.93%), the right not to be tortured, etc under Article 3 (10.71%),
the right to an effective remedy under Article 13 (8.39%), the right to
respect for private and family life under Article 8 (4.69%), and the right
to life under Article 2 (4.58%).52 Third, only a small minority of states
dominate the Court’s docket and are repeatedly in receipt of adverse
judgments. By the end of 2016, for example, 85.7% of pending
applications were against ten countries (percentage in brackets)—
Ukraine (22.8), Turkey (15.8), Hungary (11.2), Russia (9.8), Romania
(9.3), Italy (7.8), Georgia (2.6), Poland (2.3), Azerbaijan (2.1), and
Armenia (2.0).53 Between 1959 and 2016, 53% of findings of at least one
violation involved only five states: Turkey (2,889), Italy (1,791), Russia
(1,834), Romania (1,147), and Ukraine (1,106).54

Judgments on the merits—which rely mostly on written submissions from

the parties but in certain cases also upon oral public hearings—are
drafted by a Judge Rapporteur, assisted by the judge elected in respect of
the respondent state or, in some cases by a drafting committee, and put
to a vote of all judges sitting on the particular panel. Typically they
contain summaries of the facts, the history of the dispute including a
review of relevant domestic law, the arguments presented by the parties,
relevant provisions of the ECHR, the Court’s reasoned verdict, a concise
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statement of the substantive result, plus concurring and dissenting

opinions if any.

In urgent cases, where serious consequences, such as death or torture

could ensue before the matter is finally resolved, a Chamber may
‘indicate to the parties any interim measure which it considers should be
adopted’.55 Since the Grand Chamber’s judgment in Mamatkulov and
Askarov v Turkey,56 the Court regards these as binding on respondent
states with, in most cases, failure to comply constituting a violation of the
obligation under Article 34 ECHR not to hinder the right of individual
application. Although breaches are uncommon, interim applications have,
however, led to a huge surge in the application rate—mostly in cases
involving imminent expulsion or extradition—from an annual average of
about 100 until 2006 to an annual average of 1,892 between 2014–16, of
which 506 (8.9%) were granted.57

In judging the merits, the primary issue the Court has to consider is
whether, on the evidence presented, the respondent state has violated the
ECHR. This involves interpreting the alleged misconduct in context and
determining what the sparse and abstract statements of the relevant
rights mean. While a handful of Convention rights are subject to no
express exceptions and cannot be suspended under Article 15 (the
‘derogation provision’), the remainder are subject to various express
limitations and can also be suspended under Article 15. The Court also
applies a dozen or so ‘principles of interpretation’ not found in the text of
the Convention itself but identified and developed in the process of
litigation over the years.58 These are rooted in the ‘teleological principle’,
derived from Articles 31 (p. 457) to 33 of the Vienna Convention on the
Law of Treaties, which requires the text of international treaties to be
interpreted in good faith according to the ordinary meaning of their terms
in context—unless any special meaning was intended by the parties—and
in the light of the overall object and purpose of the agreement in
question. But, unlike most international treaties which are merely
reciprocal agreements between states, the ECHR is a ‘constitutional
instrument of European public order in the field of human rights’, which
creates a ‘network of mutual bilateral undertakings … [and] … objective
obligations’.59 The principle of effective protection of individual rights
holds that, given the primary function of the ECHR, rights should be
interpreted broadly and exceptions narrowly. This is linked to the
principle of non-abuse of rights and limitations, which prohibits states
and others from undermining rights by abusing either the rights
themselves or their limitations. However, the principles of implied rights
and implied limitations allow some scope for extensions to rights, and
also inherent but not extensive limitations, to be read into the text. The
principle of positive obligations permits the Court to interpret the ECHR
so as to impose obligations upon states actively to protect Convention
rights, and not merely the negative obligation to avoid violating them.

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Armed with the principle of autonomous interpretation the Court can

define some of the Convention’s key terms in order to prevent states
conveniently re-defining their way around their obligations, for instance,
by re-designating crimes as mere ‘administrative infractions’. Similarly,
the principle of evolutive, or dynamic, interpretation enables outmoded
conceptions of how terms in the Convention were originally understood to
be abandoned when significant, durable, and—according to the principle
of commonality—pan-European changes in the climate of European public
opinion have occurred, for example that homosexuality and
transsexualism are aspects of private life requiring respect from public
authorities.60 The twin principles of subsidiarity and supervision
(expressly incorporated in the preamble to the Convention by Article 1
Protocol No 15) indicate that the role of the Court is subordinate to that
of member states and is limited to determining whether the Convention
has been violated rather than acting as final court of appeal or fourth
instance.

The principle of proportionality limits interference with Convention rights

to that which is least intrusive in pursuit of a legitimate objective, while
the closely related doctrine of the margin of appreciation (expressly
incorporated into the preamble by Article 1 Protocol No 15), refers to the
room for manoeuvre the Strasbourg institutions are prepared to accord
national authorities in fulfilling their Convention obligations. Pervasive in
the ECHR are the closely related principles of legality, the rule of law, and
procedural fairness—which seek to subject the exercise of public power
to effective, formal legal constraints in order to avoid arbitrariness—and
the principle of democracy, which assumes that human rights flourish
best in the context of democratic political institutions and a tolerant
social climate.

While the Court generally seeks to remain faithful to its own previous
decisions, these are not formally binding, nor is there much doctrinal
exposition as in the common law tradition. Most judgments, therefore,
amount to little more than decisions on the facts where the precise
circumstances of the dispute are held to constitute, or not to constitute, a
violation of the ECHR but which establish little of general application
beyond. Moreover, because the Court considers itself less well placed
than national authorities to prescribe what should be done, adverse
judgments typically declare only that the ECHR has been breached.
Where this is the case, an award of compensation, though not automatic,
is now the norm. Excluding claims under Article 1 Protocol No 1 (which
reflect the value of the property involved) and (p. 458) other outliers, the
average compensation per applicant is in the region of €8,300,61 tending
to confirm that the Court has become a ‘human rights small claims
tribunal’ rather than a ‘tribunal of principle’, to which, some argue, it
should instead aspire.62

However, over the past decade or so, and primarily to stem floods of
similar complaints, the Court has shown greater willingness in several
‘pilot judgments’, to indicate the type of remedial action required from
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states found in breach. For example, in Broniowski v Poland the Grand

Chamber held that the applicant’s right to the peaceful enjoyment of
possessions under Article 1 Protocol No 1 had been violated by the
expropriation of his property coupled with the payment of inadequate
compensation, adding that, since the violation ‘originated in a widespread
problem which resulted from a malfunctioning of Polish legislation and
administrative practice … which has affected and remains capable of
affecting a large number of persons’,63 appropriate measures should be
introduced to secure an adequate right of compensation or redress, not
simply for the particular applicant, but for all similar claimants.64
Subsequent applications complaining of violations deriving from the same
source could, therefore, be directed back to the Polish authorities to
settle according to the terms of the Broniowski judgment without the
Court having to reconsider the merits afresh in each instance. Research
has shown that, while pilot judgments have been ‘relatively successful’ in
some contexts, they have been less so in others.65

A Chamber’s verdict, whether unanimous or by majority, usually disposes

of the matter. However, exceptional cases may be referred by one or more
of the parties to a Grand Chamber of 17 judges within three months of
the original judgment. Technically, such referrals are not ‘appeals’ but ‘re-
hearings’ and are conditional upon approval by the Grand Chamber’s five-
judge ‘admissibility’ panel, which is obliged to accede to them where the
case raises ‘a serious question affecting the interpretation or application
of the Convention or the Protocols thereto, or a serious issue of general
importance’.66 References to the Grand Chamber are not common, the
vast majority fail to cross the admissibility threshold, and about half of
those which are reconsidered confirm the original verdict.67 Judgments of
Chambers become final under three circumstances: when the parties
declare they will not request a reference to the Grand Chamber, three
months after the date of judgment if a reference to the Grand Chamber
has not been made, or where there has been a reference to the Grand
Chamber but the five-judge panel has rejected it.

4.5 Supervision of the execution of judgments

Supervision of the execution of judgments against respondent states is

the responsibility of the Committee of Ministers, which considers whether
the obligation under Article 46(1) ECHR, to ‘abide by the final judgment
of the Court’, has been discharged. Since this is a matter for negotiation,
the respondent state effectively participates in supervising enforcement
against itself. Judgments, including those involving friendly settlement,
are referred to the Committee of Ministers by the Directorate General of
Human Rights and Rule of Law and are entered on the agendas of special
quarterly human rights meetings. Not surprisingly, the Court’s workload
problems have also been mirrored in the enforcement (p. 459) process
with 9,941 cases pending at the end of 2015.68 Of these 8,448 (85%) were
repetitive—applications raising complaints already condemned in the
specific respondent state stemming mostly from the absence of effective

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local remedies including difficulties with the enforcement of domestic

court judgments.69

In the past the Committee’s view about what constituted sufficient

evidence of execution varied from case to case with little apparent
rationale.70 But more convincing evidence that the source of the violation
has been effectively tackled is now said to be required.71 When satisfied
that any compensation has been paid—which happened within the
deadline in 81% of cases between 2001 and 201572—and that any other
necessary measures have been introduced, the Committee of Ministers
publicly certifies that its responsibilities under Article 46(2) ECHR have
been discharged. This process can take years, for example over eight-and-
a-half in the notoriously protracted case of Marckx v Belgium, which
involved discrimination between legitimate and illegitimate children in
the law of affiliation.73 States may find it difficult to correct the systemic
source of a violation for various reasons including: lack of clarity in the
Court’s judgment, political problems, the daunting scale of the reforms
required, managing complex legislative procedures, budgetary issues,
adverse public opinion, the possible impact of compliance on obligations
deriving from other institutions, and bureaucratic inertia.74

Under Articles 46(2) and 46(3) ECHR the Court may be involved in the
supervision of the execution of its own judgments in two ways, each
activated by a two-thirds majority vote of the Committee of Ministers.
First, where execution is hindered by problems in determining what the
judgment means, the Court may be called upon to provide further
clarification. Second, the Committee can refer cases back to the Grand
Chamber where doubts have arisen about the respondent state’s
compliance with the original judgment. But there is no prospect under
these arrangements of re-opening the original verdict or of financial
penalties. Up to the end of 2015 neither procedure had been used.75

At the end of the supervision of the execution of judgments process, there

is very little the Council of Europe can do with a state persistently in
violation, short of suspending its voting rights on the Committee or
expelling it from the Council of Europe altogether, each of which is likely
to prove counterproductive in all but the most extreme circumstances.

5 The European Union

For European integrationists, the Council of Europe was a

missed opportunity and a bitter disappointment. Jean Monnet, the French
Planning Commissioner, regarded it as ‘entirely valueless’ and President
de Gaulle found it ‘simply ridiculous’.76 The French Foreign (p. 460)
Minister, Robert Schuman, therefore, proposed a European Coal and
Steel Community (founded by six Council of Europe states in 1951), to
integrate the French and German coal and steel industries in order to
provide a stronger impediment to another Franco–German war. In 1957,
the same six states developed this idea further by creating a common
market, the European Economic Community (EEC). In 1965 the merger of

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22. Europe

the EEC with the European Coal and Steel Community, and the European
Atomic Energy Community (also founded in 1957), created the European
Communities (EC). Further developments in 1992 transformed the EC
into the 12-member European Union (EU). Retaining the distinctive
identity of the EC as the ‘First Pillar’, the EU added a ‘Second Pillar’ (a
Common Foreign and Security Policy), and a ‘Third Pillar’ (Justice and
Home Affairs) embracing such issues as asylum and immigration, drugs,
judicial cooperation on civil and criminal justice, and police cooperation
on terrorism and international crime. The ‘three pillars’ were, however,
abandoned on 1 December 2009 when, under the Treaty of Lisbon, the
EU acquired a consolidated legal personality. By 2013, new members,
mostly from the former communist bloc, brought the number of EU states
to 28, over half that of the Council of Europe.

For much of its 40-year history the EEC/EC showed little overt interest in
human rights. This was largely for three reasons. First, although the
ideals of democracy, human rights, and the rule of law were always
regarded as important and desirable, human rights were not initially seen
as a priority for European economic integration. Second, it was, in any
case, assumed that they were adequately addressed by the Council of
Europe and the ECHR to which all members of the EEC/EC, but not the
EEC/EC itself, also belonged. Third, the judicial organs of the EEC/EC in
Luxembourg—the Court of Justice (also referred to as the European Court
of Justice or ECJ), the General Court, and the Tribunal, known collectively
since the Treaty of Lisbon as the Court of Justice of the European Union
(CJEU)—generally interpreted EEC/EU law as it applied to member
states, although not to the institutions of the Union itself, in accordance
with the ECHR and the jurisprudence of the Strasbourg institutions.

However, for several reasons, towards the end of the twentieth century,
the profile of human rights increased in the EU, albeit in an ad hoc rather
than systematic manner. First, it became clear that the success of
European integration hinged upon the supremacy of Community/EU law.
A rebellion threatened since the late 1960s by national constitutional
courts, fearing the risks this posed to national constitutional rights,
increasingly compelled the ECJ/CJEU to articulate its own fundamental
rights jurisprudence. Second, the EU began to require respect for human
rights as a condition of entering into formal trading and other
relationships with non-EU states. It, therefore, became increasingly
difficult for it not to have a developed human rights policy for its own
internal affairs. Third, human rights are inextricably interwoven with
issues which arose under the Third Pillar, now the Area of Freedom,
Security and Justice. Fourth, in the late 1990s, the provision of a formal
human rights document, and more effective human rights monitoring
arrangements, were seen as offering a solution to the EU’s ‘legitimacy
crisis’ caused by the widening gap between the élite-led deepening and
widening European integration, on the one hand, and the needs and less
ambitious aspirations of Europe’s citizens, on the other.

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Fifth, Protocol No 14 to the ECHR enables the EU to become a party to

the Convention,77 while Article 6(2) of the Consolidated Version of the
Treaty on European Union requires the EU to accede to the ECHR. In the
summer of 2010 the Steering Committee on Human Rights and the
European Commission were given a mandate by, respectively, the Council
of Europe’s Committee of Ministers and the EU, to negotiate a treaty
enabling the EU to (p. 461) become a party to the ECHR but not a
member of the Council of Europe. A Draft Accession Agreement was
concluded and made public on 5 April 2013.78 Yet, in spite of having been
closely involved in the discussions, on 18 December 2014, the ECJ ruled
that, in the terms proposed, accession was beyond the powers granted
the EU by its foundational treaties.79 Particular concern was expressed
about the risk that accession would effectively subordinate the ECJ to the
ECtHR with respect to Convention rights, compromise the transfer of
sovereignty by member states to the EU, and undermine the
effectiveness, autonomy, and unity of EU law. Therefore, unless its
foundational treaties are amended—a very remote prospect—accession to
the ECHR will remain a formal treaty obligation which the EU is legally
incapable of discharging.80

5.1 Human rights and the Court of Justice of the European Union

The EU operates on the basis that ‘fundamental rights form an integral

part of the general principles of [its] law’, and that ‘respect for human
rights is … a condition of the lawfulness’ of Community/Union acts.81 In
theory, therefore, violations of fundamental rights can be litigated before
the CJEU by EU institutions against each other, by member states against
each other, by the Commission against member states, by individuals and
subnational organizations with legal personality against EU institutions,
and, through preliminary references from national courts in ongoing
litigation, by individuals and subnational organizations with legal
personality against member states. However, in practice it is rare for any
of this to happen. In principle, individuals can complain to the CJEU
about a violation of their fundamental rights by EU institutions in one of
two ways. First, under Article 263 of the Consolidated Version of the
Treaty on the Functioning of the European Union, ‘any natural or legal
person’ can initiate proceedings for review of the legality of acts of EU
institutions against ‘an act addressed’ to, or which is ‘of direct and
individual concern’, to them. But this is a very difficult test to satisfy since
the ECJ/CJEU has interpreted it to mean that the applicant has been
affected ‘by reason of certain attributes which are peculiar to them or by
reason of circumstances in which they are differentiated from all other
persons’.82 The second route is more indirect. Under Article 267, a
national court may ask the CJEU for a preliminary ruling on whether EU
law, including that relating to fundamental rights, has been violated. But
this is not available to litigants ‘as a matter of right’.83 Although neither
of these routes requires an ‘exhaustion of domestic remedies’ as under
the ECHR, each, nevertheless, is likely to be expensive and protracted. It
is hardly surprising, therefore, that the CJEU has heard few human rights

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22. Europe

complaints from individual applicants and that judicial review in

Luxembourg has led to the annulment of (p. 462) only a handful of EU
measures on human rights grounds.84 Finally, the jurisdiction of the CJEU
over actions of EU institutions and member states is limited. Although
activities under the Area of Freedom, Security and Justice are included,
the CJEU has no jurisdiction at all in relation to the EU’s common foreign
and security policy, where human rights issues might also arise.

5.2 The Charter of Fundamental Rights

The Treaty of Nice 2001 both inaugurated the process of providing the
EU with more formal constitutional foundations and provided its first
formal statement of rights, the Charter of Fundamental Rights (CFREU),
which collects together, in a single document, rights which the EU has
already recognized in various other disparate sources.85 However, it was
not until the Treaty of Lisbon 2009 that the CFREU became legally
binding on member states, subject to exemptions granted to the UK and
Poland by Protocol No 30.

The CFREU differs from the ECHR in five principal ways. First, it includes
rights contained in the ECHR but not in precisely the same terms. For
example, Article 6 CFREU provides the right to liberty and security of the
person in a single clause—‘everyone has the right to liberty and security
of the person’—while Article 5 ECHR has no less than five clauses, one of
which has six further sub-clauses (12 elements in total) for the same
right. Article 52(3) CFREU requires the meaning and scope of rights
found in both the Charter and ECHR to be interpreted in the same way as
those found in the latter. But, as the Council of Europe’s Steering
Committee for Human Rights put it, ‘experience tends to show that it is
difficult to avoid contradictions where two differently worded texts on the
same subject-matter are interpreted by two different courts’.86 However,
this does not yet appear to have happened in any CJEU case.

Second, the ECHR is largely confined to civil and political rights. The
CFREU, on the other hand, also includes a wide range of social,
economic, cultural, and citizenship rights, similar to those found in the
European Social Charter discussed in Section 3.3.

Third, the ECHR provides different limitation clauses for each right.
Article 52 CFREU, on the other hand, sets out general limitations on all
substantive Charter rights in the following terms. They must be provided
for by law, respect the essence of the rights and freedoms in question,
and be subject to the principle of proportionality. They must also be
necessary and genuinely meet objectives of the general interest
recognized by the EU or protect the rights and freedoms of others.
Charter rights deriving from EU Treaties must also be exercised under
the conditions and within the limits defined by those treaties.

The fourth difference between the ECHR and the CFREU is that the
former generally binds member states in any and all of their activities,

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22. Europe

while, according to Article 51(1), in addition to the EU, the CFREU

applies to member states only as far as the formulation and
implementation of EU law are concerned.

Finally, since the CFREU does not provide any additional right of
individual petition, the only recourse to the CJEU open to individual
litigants for a breach of a Charter right remains the existing limited ones
described in Section 5.1. However, even before it acquired formal legal
status, the CFREU was already being used as a point of reference by
national (p. 463) courts and by EU institutions, including the CJEU. It now
operates as the primary source for human rights in the EU which has
become ‘one of the most significant areas of EU law’.87

5.3 The Fundamental Rights Agency and the Commissioner for

Justice, Fundamental Rights and Citizenship

Developing an idea first approved in 2003, in June 2005 the EU formally

proposed to expand the remit of its European Centre on Racism and
Xenophobia to create a Fundamental Rights Agency (FRA), which came
into operation on 1 January 2007.88 Using the Charter as its main point of
reference, attempting to avoid overlap with the Council of Europe, and
networking with national institutions, the FRA is intended to discharge
the following functions: to be an independent centre of expertise on
fundamental rights issues through data collection, analysis, and
networking; to provide relevant EU institutions and bodies, plus member
states, with assistance and expertise when implementing EU law relating
to fundamental rights; and to advise Union institutions and member
states on how best to prepare and implement fundamental rights-related
Union legislation. However, the FRA has no power to examine individual
complaints, to issue regulations, or to carry out ‘normative monitoring’
for the purposes of Article 7 EU Treaty. In 2010 the European
Commission’s Justice, Freedom and Security portfolio was divided
between the new posts of Commissioner for Justice, Fundamental Rights
and Citizenship, and Commissioner for Home Affairs, each with
responsibility for policy development in their respective fields.

6 Conclusion

There can be little doubt that the European nation-state remains

the most important arena for the legal protection of human rights.
Assuming civil peace, a distribution of resources which is at least not
gravely inequitable, and effectively regulated markets, human rights are
most likely to be secured by genuinely democratic and rights-sensitive
national legislative and executive institutions, independent, professional,
and rights-aware national judiciaries, and by the provision of national
justiciable constitutional rights.

The main human rights-related functions of both the Council of Europe

and the EU are, therefore, to contribute to the preservation and
protection of these elements where they have already firmly taken root,

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22. Europe

and to attempt to encourage their development where this is not yet the
case. Their core achievements in the human rights field lie principally in
the successful institutionalization of their respective missions in both
political and legal spheres. In turn, this has contributed significantly to
securing minimum standards across the continent, albeit not evenly or
un-problematically. While the central trends are their expansion and their
increasing complexity and interpenetration, the key challenges concern
how this could, and should, be properly understood and coherently,
legitimately, and effectively managed, particularly given that over the
past half-decade or so the authority and legitimacy of both the ECtHR and
the EU have each been called into question by rising rights-and-Euro-
scepticism and by more militant forms of populist, exclusionary
nationalism, driven especially by post-2008 economic austerity, jihadi
terrorism, mass migration, and disillusionment with multiculturalism. As
the twenty-first century progresses, these and other issues invite debate
about which analytical model(s) might provide the best insights, and
which pan-European institutional, procedural, and normative (p. 464)
framework(s) the most attractive solutions, particularly with respect to
two clusters of questions representing the flip sides of the same coin: to
what extent are the autonomy, separate identity, and divergence of the
Council of Europe and the EU likely to be preserved, or is more
integration, interdependence, convergence, and harmonization likely?
And, to what extent, are the alternatives they present desirable?89

Further reading
ARNARDÓTTIR and BUYSE (eds), Shifting Centres of Gravity in Human Rights
Protection: Rethinking Relations Between the ECHR, EU and National
Legal Orders (Routledge, 2016).

BATES, The Evolution of the European Convention on Human Rights: From

Its Inception to the Creation of a Permanent Court of Human Rights
(Oxford University Press, 2010).

and MADSEN (eds), The European Court of Human Rights

CHRISTOFFERSEN
between Law and Politics (Oxford University Press, 2011).

et al. (eds), Human Rights in Europe: The Influence, Overlaps

DZEHTSIAROU
and Contradictions of the EU and the ECHR (Routledge, 2014).

FØLLESDAL et al. (eds), Constituting Europe: The European Court of Human

Rights in a National, European and Global Context (Cambridge University
Press, 2013).

GREER, GERARDS,
and SLOWE, Human Rights in the Council of Europe and the
European Union: Achievements, Trends and Challenges (Cambridge
University Press, 2017).

GREERand WILDHABER, ‘Revisiting the Debate about “Constitutionalising” the

European Court of Human Rights’ (2012) 12 HRLR 655.

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22. Europe

(ed), The European Convention on Human Rights: A

GRABENWARTER
Commentary (Hart, 2013).

et al., Harris, O’Boyle and Warbrick: Law of the European

HARRIS

Convention on Human Rights (Oxford University Press, 2014).

TORRES PÉREZ,
Conflicts of Rights in the European Union: A Theory of
Supranational Adjudication (Oxford University Press, 2009).

SCHMAHL and BREUER (eds), The Council of Europe: Its Law and Policies
(Oxford University Press, 2017).

Useful websites
Council of Europe: <http://www.coe.int/>

European Court of Human Rights: <http://www.echr.coe.int/echr>

European Commissioner for Human Rights: <http://www.coe.int/t/

commissioner>

European Union: <http://europa.eu/>

EU Charter of Fundamental Rights: <http://ec.europa.eu/

justice_home/unit/charte/index_en.html>

European Union Agency for Fundamental Rights: <http://

www.fra.europa.eu/fra>

Court of Justice of the European Union: <http://curia.europa.eu/>

Organization for Security and Cooperation in Europe: <http://

www.osce.org/>

Notes:
1
Galbreath, The Organization for Security and Co-operation in Europe
(Routledge, 2007).

2
Royer, The Council of Europe (Council of Europe, 2010).

3
See Chapter 1.

4
Robertson, The Council of Europe: Its Structure, Functions and
Achievements (Stevens & Sons, 1961) 2.

5
Statute of the Council of Europe, preamble.

6
European Commissioner for Human Rights, ‘Third Party Interventions
by the Commissioner for Human Rights’, available at: <https://
www.coe.int/en/web/commissioner/third-party-interventions>.

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22. Europe

7 Information for this paragraph was collected in July 2007 from

interviews with some key Council of Europe officials in Strasbourg,
generously funded by a Nuffield Foundation Social Sciences Small Grant.

8See Dörr, ‘European Social Charter’, in Schmahl and Breuer (eds), The
Council of Europe: Its Law and Policies (OUP, 2017); Benelhocine, The
European Social Charter (Council of Europe, 2012); Harris and Darcy, The
European Social Charter (Transnational, 2000).

9 ECSR, Activity Report 2015 (Council of Europe, 2016) 13.

10 Benelhocine (2012), 26 and 52.

11 De Schutter and Sant’ana, ‘The European Committee of Social Rights

(the ECSR)’, in de Beco (ed), Human Rights Monitoring Mechanisms of
the Council of Europe (Routledge, 2012) 90.

12 ECPT, preamble.

13Chetwynd, ‘The European Committee for the Prevention of Torture

(CPT)’ in Kleinsorge (ed), Council of Europe (CoE) (Wolters Kluwer, 2015).

14 Available at: <http://www.coe.int/en/web/cpt/public-statements>.

15Kicker, ‘The European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment (the CPT)’ in de Beco
(2012), 52, 63 (n 56).

16 Kicker (2012), 52–3, 62–3, 65.

17Verstichel et al. (eds), The Framework Convention for the Protection of

National Minorities (Intersentia, 2008); Oeter, ‘Conventions on the
Protection of National Minorities’, in Schmahl and Breuer (2017); Weller
(ed), The Rights of Minorities: A Commentary on the European
Framework Convention for the Protection of National Minorities (OUP,
2005) vii.

18de Beco and Lantschner, ‘The Advisory Committee on the Framework

Convention for the Protection of National Minorities (the ACFC)’ in de
Beco (2012).

19Committee of Ministers, Protocol No 14 to the Convention for the

Protection of Human Rights and Fundamental Freedoms, Amending the
Control System of the Convention, Explanatory Report (12 May 2004)
para 11.

20
ECtHR, Analysis of Statistics 2016, 7, available at: <http://
www.echr.coe.int/Documents/Stats_analysis_2016_ENG.pdf>.

21To date, the Committee of Ministers has made three requests for
advisory opinions and the Court has delivered two: see ECtHR, Annual
Report 2011, 13, available at: <http://echr.coe.int/Documents/

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22. Europe

Annual_report_2011_ENG.pdf>. These figures have been confirmed by

Court officials to the author as accurate up to the end of 2015.

22
Report of the Group of Wise Persons to the Committee of Ministers,
Cm(2006)203 (15 November 2006).

23Cameron, ‘The Court and the Member States: Procedural Aspects’ in

Føllesdal, Peters, and Ulfstein (eds), Constituting Europe: the ECtHR in a
National, European and Global Context (CUP, 2013) 28–9.

24Greer, The European Convention on Human Rights: Achievements,

Problems and Prospects (CUP, 2006) 24–8.

25Georgia v Russia (No 1) (2011) 52 EHRR SE14; Georgia v Russia (No 2)

(2012) 54 EHRR SE10.

26 ECtHR Press Release, ECHR 296 (2015) (1 October 2015).

27 ECtHR Press Release, ECHR 340 (2016) (20 October 2016).

28 ECHR, Art 28(1)(a).

29Report of the Evaluation Group to the Committee of Ministers on the

European Court of Human Rights, EG Court 1 (2001) (27 September
2001), para 28.

30
ECtHR, Analysis of Statistics 2012, para A, available at: <http://
www.echr.coe.int/Documents/Stats_analysis_2012_ENG.pdf>.

31 Analysis of Statistics 2012, para C.2.

32
ECtHR, The Court’s Priority Policy, available at: <http://
www.echr.coe.int/Documents/Priority_policy_ENG.pdf>.

33 Cameron (2013), 43.

34Mahoney, ‘The European Court of Human Rights and its Ever-Growing

Caseload: Preserving the Mission of the Court While Ensuring the
Viability of the Individual Petition’ in Flogaitis, Zwart, and Fraser (eds),
The European Court of Human Rights and its Discontents: Turning
Criticism into Strength (Edward Elgar, 2013), 26.

35 Analysis of Statistics 2016, 7.

36ECtHR, Annual Report 2010, 155, available at: <http://

www.echr.coe.int/NR/rdonlyres/F2735259-F638–4E83–82DF-
AAC7E934A1D6/0/2010_Rapport_Annuel_EN.pdf>

37 Analysis of Statistics 2016, 7 and 9.

38 Analysis of Statistics 2016, 7.

39 Analysis of Statistics 2016, 9; The Court’s Priority Policy.

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40ECtHR, Annual Report 2016, 18, available at: <http://echr.coe.int/

Documents/Annual_report_2016_ENG.pdf>.

41 Annual Report 2016, 13–14.

42 Analysis of Statistics 2016, 5; Annual Report 2016, 19.

43ECHR, Art 35(3)(b). See Greer, ‘The New Admissibility Criterion’, in

Besson (ed), The European Court of Human Rights after Protocol 14:
Preliminary Assessment and Perspectives (Schulthess, 2011).

44
Information provided to the author by an official at the ECtHR on 2
March 2016.

45 Protocol No 15, Art 5.

46 ECtHR, Violations by Article and by States 1959–2016, available at: <ht

tp://www.echr.coe.int/Documents/Stats_violation_1959_2016_ENG.pdf>.

47See, for example, Mowbray, ‘An Examination of the Work of the Grand
Chamber of the European Court of Human Rights’ [2007] PL 507, 509.

48 ECtHR, Annual Report 2011, 12.

49 Violations by Article and by States 1959–2016.

50 Analysis of Statistics 2016, 10.

51 ECtHR, Overview 1959–2016 ECHR, 3, available at: <http://

www.echr.coe.int/Documents/Overview_19592016_ENG.pdf>. Judgments
on the merits refers to ‘Judgments finding at least one violation’ plus
‘Judgments finding no violation’, Violations by Article and by State 1959–
2016.

52Overview 1959–2016 ECHR, 6. See Greer and Wylde, ‘Has the

European Court of Human Rights Become a “small claims tribunal” and
Why, If At All, Does It Matter?’ [2017] EHRLR 146 (at 154, line 13 should
read ‘only a handful of provisions regularly feature in judgments’ not ‘are
regularly been found to have been breached’).

53 Analysis of Statistics 2016, 8.

54 Violations by Article and by States 1959–2016.

55Rules of Court, rule 39. See also Harby, ‘The Changing Nature of
Interim Measures before the European Court of Human Rights’ [2010]
EHRLR 73.

56 (2005) 41 EHRR 25.

57ECtHR, Rule 39 requests granted and refused in 2014, 2015 and 2016
by respondent state, available at: <http://www.echr.coe.int/Documents/
Stats_understanding_ENG.pdf>; Zwart, ‘More Human Rights than Court:

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Why the Legitimacy of the European Court of Human Rights is in Need of

Repair and How it Can be Done’, in Flogaitis et al. (2013), 94–5.

58 See Greer (2006), ch 4.

59Ireland v UK (1980) 2 EHRR 25, para 239; Austria v Italy (1961) YB

116, 138.

60 See Chapter 15.

61 Greer and Wylde (2017), 153.

62See, eg, Greer and Wildhaber, ‘Revisiting the Debate about

“Constitutionalising” the European Court of Human Rights’ (2012) 12
HRLR 655, 686.

63 (2005) 40 EHRR 495, para 189.

64 (2005) 40 EHRR 495, para 200.

65Leach et al., Responding to Systematic Human Rights Violations: An

Analysis of ‘Pilot Judgments’ of the European Court of Human Rights and
their Impact at National Level (Intersentia, 2010) 178.

66 ECHR, Art 43(2).

67 See, for example, Mowbray (2007), 512, 513, and 518.

68Committee of Ministers, Supervision of the Execution of Judgments and

Decisions of the European Court of Human Rights: 10th Annual Report of
the Committee of Ministers 2016, 47, available at: <https://rm.coe.int/
168062fe2d>.

69 Supervision of the Execution of Judgments, 47; Cameron (2013), 39–42.

70Tomkins, ‘The Committee of Ministers: Its Roles under the European

Convention on Human Rights’ [1995] EHRLR 49, 59–60; Klerk,
‘Supervision of the Execution of the Judgments of the European Court of
Human Rights—The Committee of Ministers’ Role under Article 54 of the
European Convention on Human Rights’ (1998) 45 Netherlands ILR 65,
77–8.

71Lambert-Abdelgawad, The Execution of Judgments of the European

Court of Human Rights (Council of Europe Publishing, 2008) 37–8.

72 Supervision of the Execution of Judgments, 80, Table D.3a.

73 Tomkins (1995), 61.

74 Steering Committee for Human Rights (CDDH), Guaranteeing the long-

term effectiveness of the control system of the European Convention on
Human Rights—Addendum to the final report containing CDDH proposals
(long version) (9 April 2003) 34.

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75 Information provided to the author by officials at the ECtHR.

76Simpson, Human Rights and the End of Empire—Britain and the

Genesis of the European Convention (OUP, 2001) 646.

77Art 59(2), ECHR; Eckes, ‘EU Accession to the ECHR: Between

Autonomy and Adaptation’ (2013) 76 MLR 254.

78Council of Europe, Fifth negotiation meeting between the CDDH ad hoc

negotiation group and the European Commission on the accession of the
European Union to the European Convention on Human Rights, Final
Report to the CDDH, Appendix 1, 47+1(2013)008rev2 (10 June 2012).

79 Opinion 2/13 re Accession to the ECHR [2015] 2 CMLR 21; Odermatt,

‘A Giant Step Backwards? Opinion 2/13 on the EU’s Accession to the
European Convention on Human Rights’ (2015) 47 NYUJILP 783.

80Groussot, Lorenz, and Petursson, ‘The Paradox of Human Rights

Protection in Europe: Two Courts, One Goal?’, in Arnardóttir and Buyse
(eds), Shifting Centres of Gravity in Human Rights Protection: Rethinking
Relations between the ECHR, EU and National Legal Orders (Routledge,
2016) 19–25; Björgvinsson, ‘The Role of the European Court of Human
Rights in the Changing European Human Rights Architecture’, in
Arnardóttir and Buyse (2016), 31–5.

81 Opinion 2/94 on Accession by the Community to the ECHR [1996] ECR

I-1759, paras 33 and 34.

82 Case 25/62, Plaumann & Co v Commission [1963] ECR 95, 107.

83 Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR

I-6677, para 42.

84Douglas-Scott, ‘The European Union and Human Rights After the

Treaty of Lisbon’ (2011) 11 HRLR 645, 679–80.

85Douglas-Scott (2011), 650–8; see also Defeis, ‘Human Rights, the

European Union, and the Treaty Route: From Maastricht to
Lisbon’ (2012) 35 Fordham Int’l LJ 1207.

86Steering Committee for Human Rights (CDDH), Study of Technical and

Legal Issues of a Possible EC/EU Accession to the European Convention
on Human Rights, DG-II(2002)006 [CDDH(2002)010 Addendum 2] (25–28
June 2002), para 80.

87 Douglas-Scott (2011), 645.

88See Sokhi-Bulley, ‘The Fundamental Rights Agency of the European

Union: A New Panopticism’ (2011) 11 HRLR 683.

89These and other issues are explored in Greer, Gerards, and Slowe,
Human Rights in the Council of Europe and the European Union:
Achievements, Trends and Challenges (CUP, 2017).
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