![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
ABSTRACT
The European Court of Human Rights (ECtHR) is widely regarded as the most important human rights court worldwide. This article investigates the extent to which the court addresses cases from countries with the worst human rights performance. Using a new data set on all ECtHR judgments from 1995–2012, the analysis suggests that the ECtHR does not deliver its judgments against members of the Council of Europe with the worst human rights records, but instead against more democratic and affluent states. The reason is that litigating in front of a supranational court requires capacities that vulnerable people are unlikely to possess, except when aided by transnational advocacy groups. However, more judgements are issued against countries that lack independent judiciaries, where cases are less likely to be resolved at the domestic level. While the ECtHR might not address the worst human rights crimes, it plays a subsidiary role in the European human rights protection system by compensating for weak domestic judiciaries. However, the court's inability to independently pursue litigation, together with the lack of capacity in some countries to bring cases forward, have hampered more effective protection of human rights for the most vulnerable in Europe.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Petra Guasti, PhD Political Sociology (Charles University, 2007) and PhD Political Science (Bremen University, 2014); Senior Researcher at the Institute of Sociology, Czech Academy of Sciences.
Daniel Stockemer, PhD Political Science (University of Connecticut, 2010); Associate Professor at the School of Political Studies at the University of Ottawa. Daniel's research interests are political behaviour and questions of democracy and democratization.
David. S. Siroky, PhD in Political Science (Duke University, 2009); Assistant Professor, Arizona State University (2010–).
ORCID
David S. Siroky http://orcid.org/0000-0001-6110-3183
Notes
1. Elster et al., Institutional Design in Post-Communist Societies; Kitschelt et al., Post-Communist Party Systems; Vachudova, “Corruption and Compliance in the EU's Post-Communist Members and Candidates.”
2. Protocol 11 (opened for signatures in 1994 came into force in November 1998) restructured the control machinery and significantly improved the ECHR's efficiency. After 1998, direct access for litigants is mandatory, and states were no longer allowed to exempt themselves from compulsory jurisdiction. The ECtHR also became a permanent court and created a more flexible evaluation structure for determining the admissibility of cases. Submissions are now evaluated by a registry, which dismisses cases for administrative reasons; the remaining cases are then given to judge-rapporteur (usually the national judge of the respondent country) and the admissibility is evaluated by a committee of three judges. If unanimity cannot be reached, the case is referred to the Chamber of seven judges, with the possibility of a rehearing after the delivery of judgment by the Grand Chamber of 17 judges. The Committee of Ministers retains its role in ensuring the compliance of governments with the judgments, but it no longer has the right to address the merits of cases. ECHR, Protocol No.11; Voeten, “The Politics of International Judicial Appointments,” 673.
3. For exceptions, see Elster et al., Institutional Design in Post-Communist Societies; Croisant and Merkel, “Introduction”; Merkel, “Embedded and Defective Democracies”; Schneider and Schmitter, “Liberalization, Transition and Consolidation”; Dimitrova and Pridham, “International Actors and Democracy Promotion.”
4. For a study of how the effect of political awareness on public confidence in the judiciary depends on a country's level of democracy, see Çakır and Şekercioğlu, “Public Confidence in the Judiciary.”
5. Wincott, “Human Rights, Democracy and the Role of the Court.”
6. ECHR, “Overview 1959–2013.”
7. The ECHR, formally the Convention for the Protection of Human Rights and Fundamental Freedoms, is an international treaty for the protection of human rights and fundamental freedoms in Europe. Drafted in 1950 by the Council of Europe, the convention began enforcement on 3 September 1953. To date, it has been ratified by 47 states and has 18 articles and 14 protocols. Of the protocols, eight are procedural and four are intended to expand the rights of European citizens.
8. ECHR, European Convention on Human Rights.
9. Moravcsik, “The Origins of Human Rights Regimes,” 218; ECHR, The Court in Brief.
10. The admissibility of a case to the ECHR is a complex procedure, guided by numerous rules and criteria (ECHR 2011). The types of applicants are individuals (both citizens of Council of Europe member-states and third country nationals), non-governmental actors (associations, foundations, political parties), and states. The majority of applications are individual applications against states (95%), with the remaining cases being advisory opinions (in accordance with Protocol No. 2) and inter-state cases. The ECHR is required to reply to all applications regardless of their admissibility – however, given the high number of pending cases, in 2010 more than 130,000 cases were awaiting admissibility review (ECHR 2011), and the decision of whether or not a case will be admitted can take years. In order to make the procedure easier, in 2010 ECHR adopted a simplified procedure (Protocol No. 14) under which inadmissible cases will be dealt with by a single judge assisted by non-judicial rapporteurs who will provide detailed guidelines for applicants. However, these measures are only partially effective and the backlog of cases remains an issue.
11. ECHR, The ECHR in Facts and Figures, 2013.
12. In contrast to the Inter-American Court, which frequently faces staunch opposition from member states that practice mass violations of human rights, it is also the only court whose decisions are respected by its member states. Huneeus, “International Criminal Law by Other Means,” 5.
13. Nigro, “The Margin of Appreciation Doctrine.”
14. The original founding members are: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the UK. An additional 18 countries joined in the 1990s. In order of accession, these include: Greece, Turkey, Iceland, Germany, Austria, Cyprus, Switzerland, Malta, Portugal, Spain, Liechtenstein, San Marino, Finland, Hungary, Poland, Bulgaria, Estonia, Lithuania, Slovenia, the Czech Republic, Slovakia, Romania, Andorra, Latvia, Albania, Moldova, Macedonia, Ukraine, Russia, Croatia, Georgia, Armenia, Azerbaijan, Bosnia and Herzegovina, Serbia, Monaco, and Montenegro. Please note that Russia was suspended in early 2014.
15. ECHR, The Court in Brief.
16. Janis, European Human Rights Law, 28; see also Scribner and Slagter, “Domestic Institutions and Supranational Human Rights.”
17. Sileoni, “Between Political Inertia and Timid Judicial Activism,” 52. In regard to Article 6, Italian case, state with high number of judgements, which struggles with their implementation, the explanation is to be found in the “has been due to factors concerning legal system as well as the cultural attitude of Italian politicians and civil society.” Sileoni, “Between Political Inertia and Timid Judicial Activism,” 52. Until recently, the judicial reforms necessary to accommodate obligations from the ECHR were not given high political priority. The driving rationale behind the recent reform efforts is unclear (attitudinal change or rational attempt to avoid further charges); the reluctance of judges to engage with the litigation of the ECtHR is pertinent. Yet, an agreement exists among political actors to address most pressing issues – the length of proceedings and trial procedures.
18. ECHR, The Court in Brief.
19. We thank an anonymous reviewer for pointing out that British politicians, legal scholars, and legal practitioners have voiced considerable dissatisfaction with the Court, and some have even suggested that the UK might pull out of the ECHR altogether. Russian politicians have also been highly critical of the rulings of the ECtHR on human rights violations in Chechnya. In both countries, voices were repeatedly raised regarding UK's and Russian's possible exit from the ECHR. In July 2015, UK Prime Minister David Cameron raised the issue again in relationship to possible rejection of the changes to UK human rights proposed by his government; also in July 2015, Russian Constitutional Court ruled in the highly medialized Yukos case (2014 ECtHR ruling awarded shareholders of the now-defunct oil company Yukos €1.9 billion in compensation) that national laws should take precedence over decisions of the ECtHR.
20. Moravcsik, “The Origins of Human Rights Regimes.”
21. Amos, “The Dialogue between United Kingdom Courts and the European Court of Human Rights.”
22. Moravcsik, “The Origins of Human Rights Regimes,” 256.
23. Van der Vet, “Seeking Life, Finding Justice.”
24. Ibid., 319.
25. Scribner and Slagter, “Domestic Institutions and Supranational Human Rights Adjudication.”
26. Moravcsik, “The Origins of Human Rights Regimes.”
27. Helfer and Voeten, “Do European Court of Human Rights?” 33.
28. Cichowski, “Courts, Rights, and Democratic Participation”; Cichowski, “International Courts and Democracy”; Meehan, “Human Rights Imprisoned”; Anagnostou, The European Court of Human Rights.
29. Gorzev, “Political Opposition and Judicial Resistance.”
30. Sileoni, “Between Political Inertia and Timid Judicial Activism.”
31. Hillebrecht, “The European Court of Human Rights.”
32. Hawkins and Jacoby, “Partial compliance.”
33. Bogdan and Mungiu-Pippidi, “The Reluctant Embrace.”
34. Scheeck, “Solving Europe's Binary Human Rights Puzzle.”
35. Helfer, “Redesigning the European Court of Human Rights.”
36. Hafner-Burton, “International Regimes for Human Rights.”
37. Cingranelli et al., “The CIRI Human Rights Dataset.”
38. Dahl, “Decision-Making in a Democracy”; Dahl, Democracy and its Critics.
39. Wood and Gibney, “The Political Terror Scale.”
40. As a result of known bias of AI reports (Hill et al., “Information Politics versus Organizational Incentives”), we only include the scores based on the US State Department Reports.
41. Inglehart, Modernization and Postmodernization; Inglehart and Welzel, “Modernization, Cultural Change and Democracy.”
42. United Nations Statistical Division, “Population and Vital Statistics Report.”
43. Dahl, Political Opposition in Western Democracies; Russell, Power. For a study investigating the extent to which specific and diffuse political support is related to individuals’ perceptions of respect for human rights in the context of an emerging democracy, see Hillebrecht et al., “Perceived Human Rights and Support for New Democracies.”
44. King, “Repression, Domestic Threat, and Interactions in Argentina and Chile”; Regan and Henderson, “Democracy, Threats and Political Repression in Developing Countries”; Davenport, State Repression and the Domestic Democratic Peace.
45. Davenport and Armstrong, “Democracy and the Violation of Human Rights.”
46. The data were retrieved from the Center for Systemic Peace. As a robustness check, we also examined the political rights index from Freedom House. For a discussion of the Freedom House measurements, see Giannone, “Political and Ideological Aspects in the Measurement of Democracy.”
47. Cingranelli et al., “The CIRI Human Rights Dataset.”
48. Geys, “Explaining Voter Turnout.”
49. Chaudhry et al., “Factors Affecting Good Governance in Pakistan.”
50. Dahl, Polyarchy; Horowitz, Ethnic Groups in Conflict; Muller, “Income Inequality and Democratization.”
51. Fearon and Laitin, “Ethnicity and Insurgency in Civil War Data.”
52. Kmenta, Elements of Econometrics.
53. For a comparison of the different approaches followed by the Turkish Constitutional Court and the ECtHR, in the specific domain of party prohibition cases, see Özbudun, “Party Prohibition Cases.”
54. The results from the pairwise correlation indicate that there is no relationship between a country's human rights record and the number of judgments directed against them. The Pearson correlation coefficient is not significant at any conventional level (p = .11) and is substantively very small (.06). The raw data confirms this assessment. For example, if we look at the 10 European countries with the worst human rights records, according to our composite index – Russia, Former Yugoslavia, Ukraine, Montenegro, Greece, Moldova, Bulgaria, Georgia, Bosnia, Croatia, and Serbia – only three are states with the most ECtHR judgments (Greece, Russia, and Bulgaria). Equally telling, these countries are only ranked seventh, eighth and ninth.
55. Inglehart, Modernization and Postmodernization; Inglehart and Welzel, Modernization, Cultural Change and Democracy.
56. Albiston and Sandefur, “Expanding the Empirical Study of Access to Justice,” 101; Nash, “Financing Access to Justice.”
57. Gorzev, “Political Opposition and Judicial Resistance”; ECHR, Systemic Problem of Ineffectiveness of Investigation in Bulgaria; Guasti, “Beyond EU Conditionality.” For more general literature on role of transnational NGOs see Sikkink and Kim, “The Justice Cascade”; Risse et al., The Persistent Power of Human Rights.
58. The Pearson correlation between the Polity IV index and the two Human Rights indices is 0.58 and 0.46, respectively.