Enforcement Mechanisms in the European Human Rights System
last updated July 29, 2013

Like the United Nations system, the European human rights system also includes various mechanisms to enforce the human rights provisions found in treaties, resolutions and other directives. The European system, however, consists of separate entities with distinct functions, and so it is not possible to speak about one unified European system of enforcement.

The relationship between European human rights law and domestic law is very specific. Virtually all Council of Europe (COE) member States have incorporated the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) into national law. Therefore, the judiciary at the national level can consider the provisions of the European Convention. The Council of Europe has also made clear that the European Court of Human Rights, in Strasbourg, is not a substitute for national courts, but is subsidiary to national systems that safeguard human rights. The principles of law of the European Union, known as Community Law or European Union Law, also have direct effect in national courts, as European Union Law takes precedence over national law in EU member States. For these reasons, individuals and groups alleging violations of human rights provisions are required to first exhaust domestic remedies before a case can be considered admissible by a European tribunal.

The European Court of Human Rights is the preeminent arbitrator of disputes concerning noncompliance with human rights obligations under COE treaties. It is also the longest-standing international human rights court. Both individuals and NGOs of member States have a right to petition the European Court of Human Rights and the final judgments of the Court are legally binding on the State concerned. The jurisprudence of the Court has been highly influential in the development of human rights norms, even beyond the Council of Europe system. Although the Court has been careful not to infringe upon the authority of national tribunals, it also examines domestic law and policies. For this reason, some consider the European Court of Human Rights to perform the function of a constitutional court for Europe.

In contrast, the European Court of Justice of the European Union (EU) serves a very different function. Until 1999, its jurisdiction did not include alleged human rights abuses. The Treaty of Amsterdam, however, incorporates the European Convention into European Union Law. The function of the Court of Justice, however, is not to arbitrate complaints brought by individuals against member States, but to ensure that the interpretation and application of European Union Law is observed by EU members. Thus, the Court of Justice has jurisdiction over cases brought by a member State against another member State for treaty infringement, by a European Community institution against a State and by individual citizens or organizations against European Community institutions. The Court of Justice does not have jurisdiction over the appeals of national court decisions.[1]

The relationship between the European Court of Human Rights and the European Court of Justice is somewhat complicated. Although they both handle human rights issues, they are two distinct courts and have distinct jurisdictions.[2] However, because every current Member State of the European Union is also a Member State of the Council of Europe, European Union states are indirectly still subject to the European Convention on Human Rights and therefore also the European Court of Human Rights.[3] Additionally, on June 30, 2005, the European Court of Human Rights ruled in the landmark case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland  that a Member State of the European Convention on Human Rights is responsible under Article 1 of the Convention for all acts and omissions of its organs, whether the acts or omissions were rooted in domestic law or were a consequence of the State’s execution of an EU regulation.[4] The cooperation between the two courts was further substantiated by the European Union’s steps toward accession to the European Convention of Human Rights. After almost three years of negotiations, the EU finalized its Draft Revised Agreement on the Accession of the EU to the European Convention on Human Rights in April 2013.[5] According to the 2013 Secretary General of the Council of Europe, Thorbjørn Jagland, the accession of the EU to the European Convention on Human Rights “will contribute to the creation of a single European legal space, putting in place the missing link in the European system of fundamental rights protection.” [6]

In addition to these complaint mechanisms, the Council of Europe, the European Union and the Organization for Security and Cooperation in Europe (OSCE) all perform monitoring of the human rights situation in the region. In the Council of Europe, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Committee of Social Rights have specific mandates to monitor implementation of the treaties that address these specific issues- torture and degrading treatment and economic and social rights. The European Union allows individuals and groups to submit communications to the European Commission and the European Parliament about specific incidents of human rights violations and non-compliance with European Union Law. Although these mechanisms are described as a "complaint" or "petition," they actually function more like a reporting mechanism. Neither the European Commission nor the European Parliament can issue binding judgments that would provide relief for violations of an individual's rights. Instead, these mechanisms result in increased public attention to the problem and the possibility of EU pressure on the member State to comply. Finally, the OSCE carries out monitoring through in-country visits by experts. The OSCE specifies that when investigating human rights violations, the State will not prevent the monitoring team from receiving information from individuals and non-governmental organizations.

Advocates should consider the remedies available at the international level, under the European system, as part of a larger strategy to combat violence against women. For many reasons, the international enforcement mechanisms should only be addressed after attempting to obtain redress through the national legal system.

Aside from the requirement of exhausting domestic remedies, the remedies available under international law may not always be advantageous to the individual victim. The European Court of Human Rights, which can redress violations of individual human rights, is currently backlogged, and the process can be very slow and time-consuming. Victims of violence may have limited resources in which to invest in a lengthy procedure. Furthermore, safety for the victim should be a paramount concern, and confidentiality of the complainant cannot always be ensured. Unlike the European Court of Human Rights, the EU and the OSCE are very limited in the ability to intervene and protect individual victims of human rights violations.

The table below summarizes the European enforcement mechanisms available to individuals and NGOs to enforce compliance with a State's treaty obligations:

 

 

Institution

Body

Complaint

Mechanisms

Reporting Mechanisms

Council of Europe

 

European Court of Human Rights

 

 

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

 

European Committee of Social Rights

 

 

Complaint-recourse

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Collective Complaint

 

 

 

 

 

 

 

 

Application and Country Reports

 

 

 

 

 

 

 

European Union

European Court of Justice

 

European Commission

 

European Parliament

 

Complaint- recourse

 

 

Complaint-information

 

 

Petition/Complaint-information

 

 

Organization for Security and cooperation in Europe

Monitoring Unit, Office for Democratic Institutions and Human Rights

 

Monitoring and Reporting

 

[1]“Court of Justice of the European Union,” European Union, accessed June 12, 2013, http://europa.eu/about-eu/institutions-bodies/court-justice/index_en.htm.
[2]Rozenberg, Joshua, “EU accession to the ECHR will change Euro legal framework,” The Law Society Gazette, April 15, 2013. http://www.lawgazette.co.uk/opinion/joshua-rozenberg/eu-accession-echr-will-change-european-legal-framework.  
[3]“European Convention on Human Rights: Accession of the European Union,” Council of Europe, accessed June 12, 2013, http://hub.coe.int/what-we-do/human-rights/eu-accession-to-the-convention.
[4] Lock, Tobias, “The ECJ and the ECtHR: The Future Relationship between the Two European Courts,” The Law and Practice of International Courts and Tribunals 8 (2009), http://oide.sejm.gov.pl/oide/images/files/archiwum_dokumentow/lock.pdf.
[5]“Milestone reached in negotiations on accession of EU to the European Convention on Human Rights,” Council of Europe Press Release (April 5, 2013), http://hub.coe.int/en/web/coe-portal/press/newsroom?p_p_id=newsroom&_newsroom_articleId=1394983&_newsroom_groupId=10226&_newsroom_tabs=newsroom-topnews.
[6]Id.