The Jurisprudence of the European Court of Human Rights

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  • 1 Researcher at the European Academy of Bolzano, Minorities and Autonomies, Law Degree, LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz).

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  • 1 Protocol No. 12 to the ECHR, opened for signature on 4 November 2000, not yet in force, ETS No. 177. At the time of writing it has been ratified by six states: Bosnia and Herzegovina, Croatia, Cyprus, Georgia, San Marino and, on 3 March 2004, Serbia and Montenegro.

  • 2 ECtHR, Appl. 43577/98 and 43579/98, Nachova and Others v. Bulgaria, judgment of 26 February 2004. 3 Ibid,para.163.

  • 4 Ibid,paras.116-40. 5 Ibid., paras.155-60. 6 Ibid., paras.161-2.

  • 7 Ibid., paras.158-69. 8 See Roberta Medda-Windischer, "The Jurisprudence of the European Court of Human Rights", 2 EYMI (2002/3), 445-69, at 461. 9 European Roma Rights Center, "Legal Action Challenging Forced Expulsions to Kosovo", Press Release, 23 November 2003.

  • 10 At the time on writing no decision on the admissibility of this case had been yet published. 11 ECtHR, Appl. 66746/01, Connors v. the United Kingdom, Chamber hearing on the merits of 22 January 2004; decision on the admissibility of 12 November 2002.

  • 12 ECtHR, Appl. 35071/97, Gunduz v. Turkey, judgment of 4 December 2003.

  • 13 Ibid., paras.42-50. 14 See Roberta Medda-Windischer, "The Jurisprudence of the European Court of Human Rights", 1 EYMI (2001/2), 487-534, at 496-501; and id, "The Jurisprudence of ..." 2002/3, 455-8. 15 ECtHR, Appl. 35071/97, Gunduz v. Turkey, judgment of 4 December 2003, para. 51. 16 Ibid., Judge Turmen (Turkey) expressed a dissenting opinion, which is annexed to this judg- ment. 17 ECtHR, Appl. 44179/98, Murphy v. Ireland, judgment of 3 December 2003. See Medda-Win- discher, "The Jurisprudence of ...", 2002/3, 463-4. 18 Ibid., para. 67.

  • 19 Ibid 20 ECtHR, Appl. 64927/01, Palau-Martinez v. France, judgment of 16 December 2003.

  • 21 ECtHR, Appl. 65831/01, Garaudy v. France, decision on the admissibility of 7 July 2003.

  • 22 Ibid., 22-3.

  • 23 Ibid, 24. 24 ECtHR, Appl. 48321/99, Slivenko v. Latvia, judgment of 9 October 2003. 25 ECtHR, Appl. 48321/99, Slivenko v. Latvia, decision on the admissibility of 23 January 2002. See Medda-Windischer, "The Jurisprudence of ...", 2001/2, 512-4.

  • 26 ECtHR, Appl. 48321/99, Slivenko v. Latvia, judgment of 9 October 2003, partly concurring and partly dissenting opinion of Judge Kovler. 27 Ibid., dissenting opinion of Judges Wildhaber, Ress, Bratza, Cabral Barreto, Greve and Maruste.

  • 28 ECtHR, Appl. 58278/00, Zdanoka v. Latvza, Chamber hearing on the merits of 15 May 2003. 29 ECtHR, Appl. 44158/98, Gorxelik and Others v. Poland, (Chamber), judgment of 20 December 2001, para. 64. See Medda-Windischer, "The Jurisprudence of ...", 2002/3, 460. 30 ECtHR, Appl. 44158/98, Gorzelik and Others v. Poland, (Grand Chamber), judgment of 17 Feb- ruary 2004.

  • 31 Ibid., paras. 66-9.

  • 32 Ibid., para. 90. 33 Ibid., para. 92. 34 Ibid., para. 93.

  • 35 Ibid., para. 105. 36 Ibid., joint concurring opinion of Judges Costa and Zupancic,joined by Judge Kovler. 37 ECtHR, Sidiropoulos v. Greece, judgment of 10 July 1998, D.R. 98. See Roberta Medda-Win- discher, "The European Court of Human Rights", 25(3) Journal of European Integration (2003), 249-71, at 249-50.

  • 38 ECtHR, Appl. 29221/95 and Appl. 29225/95, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, judgment of 2 October 2001. See Medda-Windischer, "The Jurisprudence of .. °, 2001/2, 489-93. 39 ECtHR, Appl.. 5438/00, Martinez Sala f� Others v. Spain, Chamber hearing on the admissibility and merits of 18 November 2003. Press release no. 536 of 29 October 2003 issued by the Reg-

  • istrar of the Court. At the time of writing the Chamber decision on this case had not been yet published. 40 ECtHR, Appl. 28520/95, Sadek Onder v. Turkey, judgment of 8 January 2004. 41 ECtHR, Appl. 32578/96 and 32579/96, (3olah and Filizer v. Turkey, judgment of 8 January 2004. 42 ECtHR, Appl. 28490/95, Hulki Gunes v. Turkey, judgment of 19 June 2003.

  • 43 ECtHR, Appl. 50102/99, Isik v. Turkey, judgment of 5 June 2003. The judgment is only available in French. 44 ECtHR, Appl. 44272/98, Orhan Kaya v. Turkey, judgment of 5 June 2003. The judgment is only available in French. 45 ECtHR, Appl. 52665/99, Akkas v. Turkey, Appl. 42741/98,p�r v. Turkey, Appl. 41580/98 and 42439/98, Qavus and Bulut v. Turkey, Appl. 51416/99, Dalgi v. Turkey, Appl. 52744/99, Erg 1 and Engin v. Turkey, Appl. 53431/99, Gençel v. Turkey, Appl. 50743/99, Hayrettin Barbaros Yilmax v. Turkey, Appl. 53895/00, Mesut Erdogan v. Turkey, Appl. 48617/99, Özyol v. Turkey, Appl. 53014/99, Peker v. Turkey, Appl. 50118/99, Simsek v. Turkey, Appl. 50119/99, Suvariogullari and Others v. Turkey, Appl. 51053/99, Tutmax and Otbers v. Turkey, judgments of 23 October 2004. The judg- ments are only available in French.

  • 46 ECtHR, Appt. 41478/98, A�ray � v. Turkey, judgment of 17 June 2003. The judgment is only available in French. 47 ECtHR, Aksoy v. Turkey, judgment of 18 December 1996, paras. 78 and 84. 48 ECtHR, Demir and Others v. Turkey, judgment of 23 September 1998, para. 57.

  • 49 ECtHR, Appl. 46221/99, Ocalan v. Turkey, (Chamber), judgment of 13 March 2003. See Medda- Windischer, "The Jurisprudence of ...", 2002/3, 458-60. 50 ECtHR, Appl. 23656/94, Ayder and Others v. Turkey, judgment of 8 January 2004.

  • 51 ECtHR, Appl. 25760/94, Ipek v. Turkey, judgment of 17 February 2004.

  • 52 Art. 38(1)(a) ECHR reads as follows : " If the Court declares the application admissible, it shall pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities." 53 ECtHR, Appl. 40299/98, Bozta; and Others v. Turkey, judgment (friendly-settlement) of 9 March 2004. The judgment is only available in French. 54 Ibid.., paras. 24-5. 55 ECtHR, Appl. 43928/98, Karkm v. Turkey, judgment of 23 September 2003.

  • 56 ECtHR, Appl. 42435/98, Abdullah Aydzn v. Turkey, judgment of 9 March 2004. 57 ECtHR, Appl. 37059/97, 37061/97 and 37062197,,4y�enur Zarakolu v. Turkey (Nos.1-2-3J, judg- ments (friendly settlements) of 23 September 2003. 58 ECtHR, Appl. 27529/95, Caralan v. Turkey, judgment (friendly settlement) of 25 September 2003.

  • 59 Ibid. 60 ECtHR, Appl. 27528/95, Ktztlyaprak v. Turkey, judgment of 2 October 2003. 61 ECtHR, Appl. 48'787/99, Ilascu and Others v. Moldova and Russia, (Grand Chamber), decision on the admissibility of 4 July 2001. See Medda-Windischer, "The Jurisprudence of ...", 2002/3, 450. 62 ECtHR, Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI. See Medda-Win- discher, "The Jurisprudence of ...", 2002/3, 445-6. 63 ECtHR, Appl. 71503/01, Assanidze v. Georgia, judgment of 8 April 2004.

  • 64 See, among the others, Radio Free Europe, "Adjar Rebels Destroy Bridge Links to Georgia", 2 May 2004, at http://www.rferl.org. 65 Ibid., para. 140. 66 See, ECtHR, Appl. 24833/94, Mattbews v. the United Kingdom, (Grand Chamber), judgement of 18 February 1999, para. 29.

  • 67 ECtHR, Appl. 71503/01, Assanidze v. Georgia, judgment of 8 April 2004, para. 23. 68 ECtHR, Appl. 36378/02, Shamayev and Twelve Others v. Georgia and Russia, decision on the admissibility of 16 September 2003. The text of the decision is only available in French. See Medda-Windischer, "The Jurisprudence of ...", 2002/3, 450-1. At the time of writing no judg- ment had been yet delivered. 69 Rule 39 of the Rules of Court. 70 Press release no. 486 of 10 October 2002 issued by the Registrar of the Court.

  • 71 Press release no. 601 of 26 November 2002 issued by the Registrar of the Court.

  • 72 ECtHR, Appl.16163/90 and 16219/90, Eugenia Michaelidou Developments Ltd and Michael Tym- vios v. Turkey and Demades v. Turkey, judgments of 31 July 2003. 73 ECtHR, Appl. 25781/94, Cyprus v. Turkey, judgment of 10 May 2001. See Medda-Windischer, "The Jurisprudence of ...", 2002/3, 446.

  • 74 Art. 46(2) ECHR. See also CM, Rules adopted by the CM for the application of Article 46(2) of the ECHR, 10 January 2001. 75 Art. 46(1) ECHR. 76 CDDH(2003)026 Addendum I Final, 26 November 2003, Guaranteeing the long-term effec- tiveness of the European Court of Human Rights, Implementation of the Declaration adopted by the CM at its 112�' Session (14-15 May 2003), para. 8. 77 Art. 16 of Protocol No. 14, adopted on 13 May 2004, not yet in force, CETS No. 194. As of 20 May 2004, Protocol No. 14 had been signed by seventeen states. See, http://conventions.coe.int. 78 Ibid., Art. 8. According to Art. 7 of Protocol No. 14 clearly inadmissible cases will be decided by a single judge instead of the current committee of three judges.

  • 79 See above, Section III. of this article. 80 See for all, ECtHR,Akkev v. Turkey, Appl. 52665/99, judgment of 23 October 2003. At the time of writing the judgment was only available in French. 81 For further reference, see Medda-Windischer, "The Jurisprudence of...", 2002/3, 452-3. 82 Press release no. 204a (2004) of 22 April 2004 issued by the Committee of Ministers. 83 Ibid. 84 Ibid.

  • 85 See, in particular, the possibility for the CM to adopt interim resolutions to provide information on the state of progress of the execution of a Court's judgment or to express concern and/or to make relevant suggestions with respect to the execution. Rule 7 of the Rules adopted by the CM for the application of article 46 (2) of the ECHR, 10 January 2001. 86 PACE, Opinion, No. 251 (2004), adopted by the Assembly on 28 April 2004 (13th Sitting), Draft Protocol No. 14 to the ECHR amending the control system of the Convention (provisional edi- tion), para. 14 (ix). 87 Art. 16 of Protocol No. 14, adopted on 13 May 2004, not yet in force, CETS No. 194. 88 CDDH (2003)55, April 2003, Guaranteeing the long-term effectiveness of the European Court of Human Rights. Final report containing proposals of the CDDH (adopted by the CDDH on 4 April 2003), para.8. A few statistics serve to illustrate this problem. In 2002,17, 915 decisions were taken declaring an application inadmissible (or striking it off the list of cases) and 577 decisions declaring an application admissible. Thus, the vast majority of cases is terminated by an inadmissibility or strike-off decision (more than 90 % per year; close to 97 % in 2002). More- over, the Court delivered 844 judgments in 2002, of which some 65% concerned repetitive cases, including cases concerning the length of judicial proceedings.

  • 89 CDDH(2003)026 Addendum I Final, 26 November 2003, "Guaranteeing the long-term effec- tiveness of the European Court of Human Rights - Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14-15 May 2003)", paras. 32-40, emphasis added. 90 CDDH (2003)55, 8 April 2003, "Guaranteeing the long-term effectiveness of the European Court of Human Rights. Final report containing proposals of the CDDH" (adopted by the CDDH on 4 April 2003), para. 17. 91 Ibid., note 2. 92 Ibid. 93 "Guaranteeing the long-term effectiveness ...",14-15 May 2003, para. 34.

  • 94 Ibid. 95 CoE, Press Release of 28 April 2004; Amnesty International, Press Release of 2 April 2004. 96 PACE, Doc.10147, 23 April 2004, Draft Protocol No. 14 to the ECHR amending the con- trol system of the Convention, Report of the Committee on Legal Affairs and Human Rights, Explanatory memorandum, Art. 13, para.43. 97 PACE, Opinion, No. 251 (2004), adopted by the Assembly on 28 April 2004 (13'h Sitting), Draft Protocol No. 14 to the ECHR amending the control system of the Convention (provisional edi- tion), para. 14 (vi) (c). The Parliamentary Assembly also proposed that in cases of alleged mass violations of human rights, the CoE Commissioner for Human Rights should not only be able to submit written comments and take part in hearings but should also bring such cases before the Court. Unfortunately, this proposal has not been included in the final text of Protocol No. 14. See, Art. 13 of Protocol No. 14, adopted on 13 May 2004, not yet in force, CETS No. 194. 98 Art. 12 of Protocol No. 14 adopted on 13 May 2004, not yet in force, CETS No. 194. 99 Ibid.

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