Horizontal Rule

Roma Rights 1, 2010: Implementation of Judgments

26th, July, 2010


Reflections of a Former European Court of Human Rights Judge on his Experiences as a Judge

Loukis G. Loucaides1

The limitations of human institutions

When I was appointed to be a judge of the European Court of Human Rights (ECtHR or the Court) in 1998 I had already served as a Member of the European Commission of Human Rights for nine years and had the experience of a long career in Cyprus as a lawyer and as a Deputy Attorney-General. With this background I was well acquainted with the problems of the administration of justice and I knew the imperfections of human justice and the forces – personal convictions, inherited instincts, traditional beliefs, education, etc. - which, though not recognised, tug at human beings and give everyone his or her own outlook on life. As aptly put by the great American judge Benjamin Cardozo, “There is in each of us a stream of tendency whether you choose to call it philosophy or not which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals.”2

Even though I was well aware of the shortcomings, deficiencies and limitations of human judicial institutions, despite the genuine idealistic objectives which led to their creation, upon my appointment as a judge of the ECtHR I was thrilled by the idea that I would be one of the jurists who would contribute to the building of a body of jurisprudence that would give protection to individual human rights vis-à-vis the omnipotent States of Europe. I was particularly enthused with the idea that an individual could at last secure effective international legal protection of his or her rights under the European Convention on Human Rights (ECHR or the Convention) through a court of law.

The appearance of problems

Shortly after my appointment, I began to realise that the ECtHR was suffering from the same problems that proved to have seriously handicapped the success and effectiveness of other international institutions that were created to serve the ideals of mankind. In saying this, I do not wish to minimise or underestimate the importance of the positive potential of the Court.

Soon after the Court started functioning in 1998 I became conscious of the practical impossibility of a single European Court of Human Rights having the capacity to deal effectively with the enormous number of prospective applications coming from countries with a collective total population of almost a billion individuals. This problem of work load would increase as lawyers in each of the European countries that were subject to the jurisdiction of the Court became well acquainted with the system. Seeing this storm coming from afar, I took the initiative to summon a meeting of the Court to direct the attention of my colleagues to the need for taking timely action to deal with this problem.

The meeting did not give any serious consideration to the issue in question. Nor were any such considerations - let alone a solution - given in the following years. Every now and then in gatherings or meetings members of the Court discussed the necessity of safeguarding at all costs the right of individual application. At the same time, they underestimated the danger - so long as no radical changes to the system were made - of flooding the Court with thousands of applications; something that would inevitably lead to depriving the applicants of a prompt or even a proper examination of their cases and, in the end, possibly, to a collapse of the system.

The selection of judges

As the Court entered the stage of working at “full steam” other problems became evident. The procedure of selecting and appointing judges was quite defective. Lawyers who had no training or even a background acquaintance with human rights and/or did not have essential or adequate knowledge of one, and on some occasions of both, official working languages of the Court, namely English and French, became members of the Court with self-evident negative consequences. The case documents presented to judges were written in either English or French. That meant that if a judge could not understand the two languages he or she could not participate in, let alone contribute to, the consideration and conclusion of the case. The same applies by analogy to the inadequate knowledge of concepts and principles of human rights.3

Moreover, according to the Convention itself, “The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.”4 These qualifications are required for good reason. Judges with high standards of legal training, knowledge and integrity are sine qua non for a court of human rights that is expected to set the standards of human rights behaviour by States, to deal with and solve subtle legal issues in applying such rights and to have the courage and efficiency to find States responsible for violating human rights; sometimes in sensitive areas of State interests including in the political, strategic, social, ethical and moral spheres.

The lack of proper criteria

I verified that the procedures followed in the selection of Court judges were not such as to lead to the desired result. In the national systems, the selection of the candidates was not, in general, carried out according to any prescribed correct procedure. There were countries in which the selection was made on the basis of criteria such as the friendly relations of the candidate with influential political personalities or the affiliation of the person proposed with the political party in power. It was therefore obvious that the States concerned did not aim to propose the most qualified candidate. And when it came to candidate selection by the competent organs as listed in the Convention, the following procedure was followed: the judges were elected by a sub-Committee of the Council of Europe’s Parliamentary Assembly. This sub-Committee consisted of 18 members chaired by a politician; many of the members had no legal qualifications. They chose candidates from lists of three drawn up by the 47 Member Governments in a manner which was totally opaque.5 The result was that not all members of the Court had the required competence. This leads me to another disappointing feature concerning the examination of the cases brought before the Court.

The preparation of cases by the Registry

When a case was filed, it was assigned to a lawyer who was a member of the Registry; at the same time a judge Rapporteur was appointed to supervise the preparation of the case and the solution proposed. In general, the substantial work - studying the application, the documents attached to it, preparing the report and suggesting the solution - was done by the member of the Registry. The extent of intervention, supervision and work of the judge Rapporteur depended on the personality, diligence and industry of the particular judge. Not all the judges had such qualities. The result was that the view of the member of the Registry frequently prevailed; he or she gave the direction to the solution of the case; i.e. whether the case should be declared admissible or inadmissible, whether it should be communicated and whether a violation should be found.

Of course, the judge Rapporteur proposed to the Section or the Grand Chamber the solution to the case assigned to him. Judges generally based their input on the explanations of the member of the Registry concerned. But, if the judge did not study the case file in depth, he or she had only a general idea of the case and his or her elaboration was based on the report of the Registry member. The report, without the supporting documentation, was distributed to other judges participating in the examination of the case. Further problems must have been faced by those judges who were not in a position to understand the language of the report. On occasion, I realised that certain judges did not understand the matters at hand and did not express a coherent or even a relevant opinion, or any opinion at all about the case. The deliberations were limited by a tight schedule and the established practice which expected judges to show restraint and avoid speaking about the case for a second time.

Moreover, the generally followed procedure was that no subsequent deliberations took place apart from a meeting for the examination of the draft judgment prepared on the basis of the original provisional vote after the first deliberation. This situation led to limited discussion of cases by the judges and to only a cursory judicial review of the matters at issue. A drafting committee of judges carried out the drafting of the judgment on the basis of a proposed draft prepared by the Registry.

Under these circumstances, I found the whole system to be inadequate, bearing in mind in this respect the rather unsatisfactory qualifications and behaviour of a substantial number of members of the Court and the influential role of the members of the Registry who, although themselves were not judges, could formulate and direct the judicial fate of cases as explained above.

The role of the Registry

In fact, the Registry has had a very decisive role in the work of the Court. Suffice it to say that instead of preparing a full report for judges, Registry members could remit cases to committees of three judges for their summary dismissal on the basis of a judge’s general approval of a determinative suggestion of the functionnaire concerned. This meant that only a brief statement of the facts and an even briefer explanation regarding the reasons for the case’s dismissal was given, such as “non-exhaustion”, “fourth instance” (examination would have amounted to a review on appeal from the national court) or “the application does not satisfy the requirements of the Convention.” The committee cases formed a bundle of 100 or so reports (generally of one page) which were examined, quickly perused and dealt with to a great extent superficially at meetings held by the sections about once a week. This suited the members of the Registry - some of whom were not particularly efficient and diligent – who were dealing with cases because they could be credited for disposing of a substantial number of cases without putting in any significant amount of work into them, even though many deserved extensive study and preparation leading to a full report for decision by a chamber of judges.

The “Bureau”

When speaking about the shortcomings in the organisation and work of the Court, reference must be made to the so-called “Bureau” of the Court; this is composed of the Section Presidents and presided over by the President of the Court. This organ is not included in the Convention and there is no specific authorisation for its creation in any of the Court’s rules.

Nevertheless, in the Rules of the Court we find a provision for the “Bureau” (rule 9A), the task of which:

shall be to assist the President in carrying out his/her function in directing the work and administration of the Court. To this end the President may submit to the Bureau any administrative or extra-judicial matter which falls within his/her competence. The Bureau shall also facilitate co-ordination between the Court’s Sections.6

The Convention does not speak of any institutionalised “assistance” to the President or of any “facilitation” of co-ordination between the Court’s Sections by any prescribed organ. The rule proceeds to provide that “the Bureau” (as distinct from the President) “may report on any matter to the Plenary.” It is therefore obvious that the rules, by providing for the existence of a “Bureau”, were not even confined to the establishment of a procedural arrangement but they introduced a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention.

Yet during my time the “Bureau” examined and provided solutions to problems and matters concerning the administration of the Court’s work. Although it lacks any legal basis in the Convention its decisions have a de facto binding effect. It does not account in a transparent and open way to the other judges. Nonetheless, it behaves as the highest administrative authority of the Court. I personally had most disappointing experiences concerning the decisions and behaviour of this organ which failed to deal with or respond to serious matters raised by me in writing concerning irregularities regarding procedural problems in certain cases pending before the Sections.7

Matters affecting the interests of States

Another issue - perhaps the most important - regarding the work of the Court was its reluctance to find violations in sensitive matters affecting the interests of the respondent States. Without implying in any way a lack of integrity on the part of judges, I must say that I formed the belief, on the basis of cases, that the majority of the judges were reluctant to find violations in cases that would present serious problems to a State’s financial capabilities, to the general legal or governmental system or to the political objectives of the respondent State. This reluctance could only be overcome in cases where a general consensus or a forceful opinion or reaction was formed and consolidated amongst the Council of Europe’s Member States in such way as to prevail over the particular serious State interests at issue. This last factor explains judgments such as those which were against the moral traditions of the respondent States, such as judgments overturning the prohibition of homosexuality.

I provide below certain illustrations of case law supporting my conclusion regarding the tendency of the Court not to harm serious interests of respondent States.

Jurisprudence showing a certain reluctance of the Court

Examples of such cases include Chapman v The United Kingdom,8 Bankovic v Belgium and 16 Other Contracting States9 (which I have criticised elsewhere10), Stec and Others v The United Kingdom,11 Hatton and Others v The United Kingdom,12 H.M. v Switzerland13 and Xenides-Arestis v Turkey.14

The Chapman case
 

Chapman v The United Kingdom concerned a complaint by a Gypsy woman alleging that:

planning and enforcement measures taken against her in respect of her occupation of her land in her caravans violated her right to respect for her home and her private and family life […]; that these [measures] also disclosed an interference with the peaceful enjoyment of her possessions […]; and that she had no effective access to court to challenge the decisions taken by the planning authorities […] She further complained that she was subjected to discrimination as a Gypsy contrary to Article 14 of the Convention.15

The question of discrimination had a predominant place in the case. Adjusting planning controls concerning the use of land to the Gypsy way of life was strongly and constantly opposed by British authorities and the British public.16 In 1996 in Buckley v The United Kingdom which concerned a Gypsy applicant, the Court had already adopted an approach in favour of a “wide margin of appreciation” on the part of the authorities in the area of planning controls.17 This avoided the need to give the appropriate weight to the fact that Gypsies had more limited housing options open to them due to their lifestyle and that they had special requirements that outweighed the slim public interest in the application of public controls in their case. In other words, the Court failed to grasp the gist of the just claims of the Gypsy minority which, like other minorities, was entitled in terms of human rights to the respect and protection of the traditional specificities shaping their identity. Eight years later, the Court failed again in Chapman to extend protection to the particular characteristics of their lifestyle with respect to similar complaints by a Gypsy applicant. The Court stated that Article 8 of the Convention does not impose a positive obligation on the State to make available to the Gypsy community an adequate number of suitably equipped sites and that it would be slow to grant protection to those who, in defiance of the law, established their home on an environmentally protected site. As rightly observed by dissenters:

There is an emerging consensus amongst the Member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle not only for the purpose of safeguarding the interests of the minorities themselves but also in order to preserve a cultural diversity of value to the whole community. This consensus includes a recognition that the protection of the rights of minorities, such as Gypsies, requires not only that Contracting States refrain from policies or practices which discriminate against them but also that, where necessary, they should take positive steps to improve their situation through, for example, legislation or specific programmes.18

The first cases concerning the difficulties facing Gypsies were confined principally to applications against the United Kingdom concerning the inflexible British planning controls. With the entry of Central and Eastern European countries into the Convention System - States with large Romani and other minority populations - the approach of the Court changed direction to a more protective approach regarding the rights of these minorities.

This change was, I believe, due to the force of the other point of view of persons affected by inflexible judgments such as Buckley and Chapman, supported now by a wider consensus and a larger, more dynamic group of persons, organisations and institutions (those involved in litigation and those that are not) as well as by repeated recommendations by the Council of Europe’s Committee of Ministers and Parliamentary Assembly.19

This is illustrated by the recent judgments D.H. and Others v The Czech Republic20 and Oršuš and Others v Croatia.21 In both cases, the Court found violations of Article 14 (prohibition of discrimination) read in conjunction with Article 2 of Protocol No.1 (right to education) in respect of the Romani applicants.

I must, however, add that the general practice of the Court of avoiding the examination of a complaint for violation of the prohibition of discrimination under Article 14 in cases where a violation of another Convention Article is found works as a brake that impedes the protection of minority rights when-ever it appears that the violation found could be due to the fact that the victim belonged to a minority group such as Roma. In this respect, I endorse the dissenting opinion of Jean-Paul Costa in Cyprus v Turkey, in which he disagreed with the majority that no violation of the prohibition of discrimination under Article 14 was found in respect of the Greek-Cypriot and the Turkish-Cypriot Romani communities living in the Turkish occupied part of Cyprus. In his opinion he rightly stated that “As a matter of general principle the prohibition on discrimination contained in Article 14 does not appear to me to be made redundant by a mere finding that a right guaranteed by the Convention has been violated.”22

In any event with the adoption of Protocol 12 to the Convention which provides for the prohibition of discrimination as an independent right, unconnected with other rights safeguarded by the Convention, the legal protection of minorities can be more effective.23 Although it entered into force in 2005, the first case in which the Court found a violation of Article 1 of Protocol 12 was Sedjić and Finci v Bosnia and Herzegovina. This case is important in three respects: 1) the protection of equal treatment was applied to individuals in respect of a right under national law - namely that the right to stand for election to the Presidency of the respondent State which does not fall within the rights safeguarded under the Convention; 2) the applicants were members of minorities - one was a member of the Romani community and the other was a member of the Jewish community; and 3) the violations found were intertwined with the constitutional arrangements made to achieve peace between the three belligerent ethnic groups in the State in question. The Court, unaffected by the political exigencies, acted in line with the principle of prohibition of discrimination under Protocol 12. In fact the violations were so obvious that any other course would have led to a complete collapse of the system. Even in his dissenting opinion, Judge Bonello admitted that “there is nothing as obvious as finding damnable those provisions in constitutional set-up that prevent Roma and Jews for standing for election. So far, an open and shut violation […].”24

The Bankovic case
 

Bankovic v Belgium and 16 Other Contracting States25 concerned whether the bombing by States party to the European Convention on Human Rights of a territory of a country which was not party to the Convention entailed responsibility under the Convention. I think that the answer should have been a straight-forward finding of violation, thus avoiding the absurdity of allowing States to adhere to human rights standards imposed by the Convention within their territory but to act with impunity outside their boundaries. However such a finding would have had enormous negative consequences on the strategic and political activities of the States concerned. The Court declared the application inadmissible using a most unconvincing reason regarding the notion of “jurisdiction”.

The Stec case
 

The case of Stec and Others v The United Kingdom concerned differential treatment between men and women in the United Kingdom’s State pension scheme. The Court, by 16 votes to one (the author of this article), although finding that this treatment - in the form of different pensionable ages - amounted at some stage to unequal treatment on the grounds of sex, tried to justify this discrimination by saying that:

Having begun the move towards equality, moreover, the Court does not consider it unreasonable of the government to carry out a thorough process of consultation and review, nor can Parliament be blamed for deciding in 1995 to introduce the reform slowly and in stages. Given the extremely far-reaching and serious implications, for women and for the economy in general, these are matters which clearly fall within the State’s margin of appreciation (emphasis added).26

With respect to my own reaction as a dissenter, I refer only to one sentence of my opinion:

First, I consider that new social legislation, however well-balanced it may be, cannot be invoked under the doctrine of the margin of appreciation as an excuse for not having acted in due time to avoid an instance of discrimination clearly lacking reasonable and objective justification.27

I may have been right or wrong in my opinion. But I think that the point that I made above about the reluctance of the Court to find a violation that has serious negative effects on the respondent State’s vital interests is illustrated clearly.

The Hatton case
 

Similar considerations apply to Hatton and Others v The United Kingdom. In that case the applicants complained that the Government policy on night flights at Heathrow airport introduced in 1993 violated their rights under Article 8 of the Convention. The third Section found in favour of the applicants. However, the Grand Chamber found no violation and in this respect invoked the following:

As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights.28

In this respect, it is useful to refer to the dissenting opinion of five members of the Court who stated the following:

The Grand Chamber’s judgment in the present case, in so far as it concludes, contrary to the Chamber’s judgment of 2 October 2001, that there was no violation of Article 8, seems to us to deviate from the above developments in the case-law and even to take a step backwards. It gives precedence to economic considerations over basic health conditions in qualifying the applicants’ “sensitivity to noise” as that of a small minority of people” (emphasis added).29

The H.M. case
 

H.M. v Switzerland concerned the placement of elderly persons in nursing homes against their will in accordance with Articles 397a et seq. of the Swiss Civil Code, which enabled the withdrawal of liberty on grounds of welfare assistance. The majority followed the proposal of the President of the Chamber, the Swiss judge, Mr Wildhaber. Judge Wildhaber supported the view that the placement of the elderly applicant in a nursing home against her will did not amount to a deprivation of liberty considering the fact that the placement was a responsible measure taken by the competent authorities in the applicant’s own interest. I disagreed and stated that whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned. In my opinion, the deprivation fell outside the deprivations of liberty permitted under Article 5 of the Convention and was therefore not accompanied by the safeguards against arbitrariness provided by the same Article. As an example of such arbitrariness, I referred to the possibility of elderly people being deprived of their liberty at the behest of scheming relatives seeking to make personal gain from their compulsory removal of these people to institutions “for their own good”.

The Xenides-Arestis case
 

Xenides-Arestis v Turkey is a typical example of the Court sending a signal of its unwillingness to continue dealing with repetitive cases involving ongoing violations, where such cases present a real threat to the respondent Government’s strong, persistent and long term political objectives and were simultaneously becoming a nuisance to the Court. To indicate its unwillingness to be involved, the Court invoked the need for the applicants to exhaust new “domestic” remedies proposed by the respondent State - albeit illegal and ineffective - thus giving to the Court the opportunity to wash its hands of the case.

Like other Greek Cypriots who were displaced from their homes and properties by the Turkish forces which invaded Cyprus in 1974, the applicant was deprived of her property by the respondent Government. The Court had previously found Turkey responsible for continuing violations in similar cases.30 No question of exhaustion of domestic remedies arose in the past because the Court found that there was an “administrative practice” regarding the confiscation of Greek Cypriot properties in the Turkish-occupied area and there existed no effective remedy. These cases were a real headache for Turkey and it kept trying to divert them away from the jurisdiction of the Court.

With the help of some circles of the Council of Europe, administrative and diplomatic, along with the understanding of the President of the Court, Judge Wildhaber, and others, Turkey established a “Compensation Commission” in the occupied area to deal with complaints similar to those of the applicant as a way out of its problem. This scheme was encouraged by the Court. The result in the case of Xenides-Arestis was that without any proper examination of its legality and effectiveness, the section dealing with the case commented favourably on the “law” of the occupied territory of Cyprus that provided the “remedy” in question. The relevant judgment stated:

The Court welcomes the steps taken by the Government in an effort to provide redress for the violations of the applicant’s Convention rights as well in respect of all similar applications pending before it. The Court notes that the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005 (emphasis added).31

The section concluded that, in view of the advanced stage of the proceeding in the case under consideration (the application had been declared admissible), it was not possible to apply the non-exhaustion ground. However, the case established the foundation for the rejection of subsequent similar applications which, according to the Court, should have been examined by the “Commission” in the Turkish-occupied area of Cyprus despite the many well-founded legal objections to such recourse.32

Reluctance to find unfair judgments of national courts

During my term of office as a judge I also experienced a consistent general attitude of the Court toward not finding a violation of the right to a fair trial on the ground of unfair national court judgments. The Court was concentrating on the procedural safeguards of a trial and it has established a practice of not interfering with the result of a trial on the ground that such an interference would transform the Court into a court of “fourth instance”. I had the opportunity to criticise this practice both in an article I authored and in my dissenting opinion in the case Göktan v France33 in which I stated:

I believe that the right to a fair trial is not confined to procedural safeguards but extends also to the final judicial determination itself of the case. Indeed it would have been absurd for the Convention to secure proper procedures for the determination of a right or a criminal charge and at the same time leave the litigant or the accused unprotected as far as the result of such a determination is concerned. Such approach would allow a fair procedure to end up in an evidently unjustified or unfair result.34

As far as I know the Court has in only one case interfered with the finding of a national court on the ground of unfairness. This is the case of Dulaurans v France35 where a finding of the French Court of Cassation, which left one of the claims of the applicant undecided, was considered by the Court to be manifestly wrong. The decision was a step in the right direction. Nevertheless, it was exceptional and it was – wrongly – criticised by circles of the Court of Cassation on the ground that the European Court of Human Rights overstepped the limits of its competence and interfered with the judicial competence of national courts.

Concluding remarks

Subject to all of the above, I must, in fairness, state that the Court through many cases has established a commendable jurisprudence in the field of human rights, doing justice to victims of oppressive or unfair behaviour by States. It remains to be seen whether in the light of the problems set out above the Court will in the future fulfil its task judicially, effectively and consistently, without fear or favour. Many of us entertain some doubts, but we all wish that things will improve. The Court has some excellent fearless judges and it enjoys the support of all those who really care about the protection of human rights.

Endnotes: 

  1. Loukis G. Loucaides is a barrister at law, a former judge of the European Court of Human Rights (1998-2008) and a former Deputy Attorney-General of Cyprus. He is the author of seven books and many articles, mainly on human rights topics.
  2. Benjamin Nathan Cardozo, The Nature of the Judicial Process (Yale University Press, 1921), 12.
  3. In the Report of Lord Woolf of December 2005 it is suggested that “A mandatory induction course should be provided to the judges immediately after they arrive in Strasbourg, covering a broad range of subjects, from the Convention system and core principles […]” and that “As deliberation in Chamber is in either French or English, judges with insufficient knowledge of these languages […] may be unable to contribute fully to deliberations, and thus to the final judgment […] the Court should provide language training, where necessary, for new judges. When new judges are appointed, their language proficiency should be assessed, and supplemented, if necessary, with intensive training.” The Right Honourable The Lord Woolf et al., Review of the Working Methods of the European Court of Human Rights, December 2005, available at: http://www.echr.coe.int/NR/rdonlyres/40C335A9-F951-401F-9FC2-241CDB8A9D9A/0/LORDWOOLFREVIEWONWORKINGMETHODS.pdf, 62-64. These unfortunate proposals boil down to accepting that judges who are not qualified in terms of the necessary legal knowledge and the official languages may participate in the judicial process - the examination of cases, the deliberations and judgment – so long as they get lessons to become qualified in the future.
  4. Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, Article 21, available at: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf.
  5. Lord Hoffmann, “The Universality of Human Rights” (Judicial Studies Board Annual Lecture, 19 March 2009), available at: http://www.google.com/url?sa=t&source=web&cd=1&ved=0CBIQFjAA&url=http%3A%2F%2Fwww.jsboard.co.uk%2Fdownloads%2FHoffmann_2009_JSB_Annual_Lecture_Universality_of_Human_Rights.doc&ei=?cKwXTLuSOcuOOKCzrJcL&usg=AFQjCNGmMghObZC6Kp7yHH7Kc_hABDGbMg.
  6. European Court of Human Rights (ECtHR), Rules of the Court, 1 June 2010, available at: http://www.echr.coe.int/NR/rdonlyres/6AC1A02E-9A3C-4E06-94EF-E0BD377731DA/0/RulesOfCourt_June2010.pdf.
  7. The Bureau continues to function in the same way to this day.
  8. ECtHR, Chapman v The United Kingdom, Application no. 27238/95, 18 January 2002.
  9. ECtHR, Bankovic v Belgium and 16 Other Contracting States, Application no. 52207/99, 12 December 2001.
  10. Loukis J. Loucaides, “Determining the Extra–territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic Case”, European Human Rights Law Review, Issue 4 (2006); reprinted in Loukis J. Loucaides, The European Convention on Human Rights: Collected Essays, (Martinus Nijhoff, 2007).
  11. ECtHR, Stec and Others v The United Kingdom, Application nos. 65731/01 and 65900/01, 12 April 2006.
  12. ECtHR, Hatton and Others v The United Kingdom, Application no. 36022/97, 8 July 2003.
  13. ECtHR, H.M. v Switzerland, Application no. 39187/98, 26 February 2002.
  14. ECtHR, Xenides-Arestis v Turkey, Application no. 46347/99, 12 July 2005.
  15. ECtHR, Chapman v The United Kingdom, Application no. 27238/95, 18 January 2002, paragraph 3.
  16. See, for example, the facts in Application no 11862/85.
  17. ECtHR, Buckley v The United Kingdom, Application no. 20348/92, 25 September 1996.
  18. ECtHR, Chapman v The United Kingdom, Application no. 27238/95, 18 January 2002. Joint Dissenting Opinion of Judges Pastor Ridruejo, Bonello, Tulkens, Straznicka, Lorenzen, Fishbach and Casadevall, paragraph 3.
  19. Dean Spielmann, “La question des Tsiganes et la jurisprudence de la Cour europeenne des Droits de l’ Homme”, Annuare International Des Droits de l’ Homme: p.122.
  20. ECtHR, D.H. and Others v The Czech Republic, Application no. 57325/00, 13 November 2007.
  21. ECtHR, Oršuš and Others v Croatia, Application no. 15766/03, 16 March 2010.
  22. ECtHR, Cyprus v Turkey, Application no 25781/94, 10 May 2001. Partly Dissenting Opinion of Judge Costa, paragraph 3.
  23. The Protocol was adopted on 4 November 2000 and entered into force on 1 April 2005. As of February 2010, it has 17 Member States and 20 signatories (from 47 CoE Member States).
  24. ECtHR, Sedjić and Finci v Bosnia and Herzegovina, Application nos. 27996/06 and 34836/06, 22 December 2009. Dissenting Opinion of Judge Bonello.
  25. ECtHR, Bankovic, Stojadinovic, Stoimenovski, Joksimovic and Sukovic v Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, Application no. 52007/99, 12 December 2001.
  26. ECtHR, Stec and Others v The United Kingdom, Application nos. 65731/01 and 65900/01, 12 April 2006, paragraph 65.
  27. ECtHR, Stec and Others v The United Kingdom, Application nos. 65731/01 and 65900/01, 12 April 2006. Dissenting Opinion of Judge Loucaides.
  28. ECtHR, Hatton and Others v The United Kingdom, Application no. 36022/97, 8 July 2003. Grand Chamber, paragraph 126.
  29. ECtHR, Hatton and Others v The United Kingdom, Application no. 36022/97, 8 July 2003. Grand Chamber Joint Dissenting Opinion of Judges Costa, Ress, Turmen, Zupancic and Steiner, paragraph 5.
  30. Including: ECtHR, Loizidou v Turkey 1996-VI, Application no. 15318/89; ECtHR, Cyprus v Turkey, Application no. 25781/94, 10 May 2001; and ECtHR, Demades v Turkey, Application no. 16219/90, 31 July 2003 and 22 April 2008.
  31. ECtHR, Xenides-Arestis v Turkey, Application no. 46347/99, 12 July 2005, paragraph 37. In its decision on admissibility the Court stated: “The Court considers that the respondent State must introduce a remedy which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005.”
  32. Demopoulos and Others, decided on 1 March 2010. This Decision was purely political in formulation, reasoning and effect. By way of illustration, the Court found inter alia that the title to property, with the passage of time, may be emptied of any practical consequences and that an occupying power cannot be asked to ensure that the owners in question obtain access to and possession of their properties if others have in the meantime gotten possession of these properties - regardless of whether such possession was illegal because the present users are settlers from Turkey or other trespassers. Moreover the Court attributed responsibility to victims of violations for the non-solution of the political problem which, according to the Court, was a factor in the violations in question, even though in actual fact the cause of the violations was the continuing illegal Turkish occupation and Turkey’s policy of dividing Cyprus into an area populated and administered by a majority of Turkish Cypriots and another area populated and administered by a majority of Greeks Cypriots.
  33. ECtHR, Göktan v France, Application no. 33402/96, 2 July 2002.
  34. Loukis J. Loucaides, “Questions of Fair Trial under the European Convention on Human Rights”, Human Rights Law Review, Volume 3, No. 1; reprinted in Loukis J. Loucaides, The European Convention on Human Rights: Collected Essays, (Martinus Nijhoff, 2007).
  35. ECtHR, Dulaurans v France, Application no. 34553/97, 15 March 2003.

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