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Corte Europea dei Diritti dell Uomo

 

Corte Europea dei Diritti dell Uomo

Italy and European Court of Human Rights: country profile.

THE EUROPEAN COURT OF HUMAN RIGHTS

Each State party of the Convention for the Protection of Human Rights and Fundamental Freedoms or individual who considers himself victim of a breach of that Convention may submit complaints to the European Court of Human Rights (ECHR) in Strasbourg in order to obtain the respect of those rights.

The Convention for the Protection of Human Rights and Fundamental Freedoms (better known as the European Convention on Human Rights was opened for signature in Rome on November 4th 1950 and it entered into force on September 3rd 1953.
The Convention has created an international judicial organ with jurisdiction to rule on compliances related to violations of  rights and freedoms foreseen therein.

States, by ratifying the Convention, have undertaken to secure and guarantee to everyone within their jurisdiction, not only their nationals, the fundamental rights and freedoms defined in the Convention (art. 1).
The rights and freedoms secured by the Convention include the right to life (art. 2), some legal rights – the right to liberty and security (art. 5), the right to a fair hearing (art. 6), the principle Nulla poena sine lege (art. 7) and the right to an effective remedy (art. 13) -, the right to respect for private and family life (art. 8), the right to marry (art. 12) and the protection of property (art. 1 of Protocol n. 1), as well as the freedom of expression (art. 10), the freedom of thought, conscience and religion (art. 9) and the freedom of assembly and association (art. 11). Furthermore, the Convention prohibits torture and inhuman or degrading treatment or punishment (art. 3), slavery and forced labour (art. 4) and discrimination in the enjoyment of the rights and freedoms secured by the Convention (art. 14).
Exceptions to treaty obligation are allowed only in time of war or other public emergency (art. 15), excluding obligations arising from other international commitments and those guaranteed by articles 2, 3, 4§1 and 7 of the Convention.

The Convention is a living instrument. It evolves especially by means of the interpretation of its provisions by the European Court of Human Rights which, through its case-law, has thus extended the rights afforded and has applied them to situations that were not foreseeable when the Convention was first adopted (for example, the right to a healthy environment, the right to personal data protection, the rights related to expulsions and extraditions proceedings, etc.).
The Convention evolves as well by means of Protocols, that is, texts (binding only on those States that have signed and ratified them) which add one or more rights to the original Convention or amend certain of its provisions concerning the application system. To date, 14 additional Protocols have been adopted: for instance, in 2003 Protocol No. 13 concerning the abolition of the death penalty in all circumstances, in 2005 Protocol No. 12 concerning non-discrimination and in 2010 Protocol No. 14 which has emended the Convention’s monitoring system.

The Court - located in Strasbourg - is composed of a number of judges equal to that of the Contracting States, currently forty-seven (for Italy, since 5 May 2010, Mr. Guido Raimondi), elected for nine years by the Parliamentary Assembly of the Council of Europe, not re-electables and with a mandate that ends once reached the seventieth birthday (Prot. 14). The judges sit in court as individuals, not representing any State, since they are related to an obligation of independence and impartiality in the performance of their duties. The Court met in plenary session shall elect its chairman, two vice-presidents and  chamber-presidents (there are five chambers) for a period of three years; each Chamber decides the cases in composition of seven members (reduced to five at the special forecasts of article 26 n.2). Committees are also constituted of three judges for a period of twelve months as part of each section; they can declare  inadmissible the case or strike it out of its list or judge on the merits, if the underlying question in the case is already the subject of well-established case-law of the Court; the President of the chamber and the judge of the State involved in the complain are included. The section members who are not included in the chamber, sit as alternates. Finally, the Grand Chamber of the Court consists of seventeen judges; the chairman, the vice-presidents and presidents of the sections are always included into the Grand Chamber.

Since 1 November 2015 the President of the Court is the Italian judge Guido Raimondi.

The procedure is public, including hearings except in special circumstances. Pleadings and other documents filed with the Court by the parties are freely accessible to the public; the appeals may be submitted individually or through representation by a lawyer in an official language of the Contracting States. According to Prot. 14 any individual action is primarily attributed to a single judge: after a preliminary examination of the case, the single judge decides on the admissibility or possible removal from the register. If not declared inadmissible or struck out, the single judge shall transmit it to a committee or to a Chamber for further consideration. The Committee may, in turn, declare it inadmissible or admissible and decide on the merits if the issue involved is the subject of a case law of the Court. If no decision is taken, a section will decide on the admissibility and merits of the claim.

The President of the Chamber may invite or authorize any State not party to the proceedings, or any interested person other than the applicant, to submit written comments or attend the hearing; the Contracting State whose nationals is an applicant may instead legitimately intervene in the case. During the procedure, the Court may make itself available to the parties to reach a friendly settlement. At any stage, the Chambers have the option of referring the case to the Grand Chamber when the case raises a serious question of interpretation of the Convention, or when there was the possibility that a decision would contradict a decision earlier made by the Court, unless a party objects.

At the end of the matter, the Chamber shall decide by a majority vote about the complain; within three months of the ruling, any part may request that the case be referred to the Grand Chamber if it raises a serious question concerning the interpretation or the application of the Convention, or a major issue of general importance. A judgement of a Chamber becomes definitive after the expiration of a period of three months without any of the parties has requesting a referral to the Grand Chamber, or even before that date if the parties expressly declare their intention to avoid any request to the Grand Chamber, or, finally, if the referral request is rejected. Otherwise, given the accepted request, the Grand Chamber decides on the case by majority; all final judgments of the Court are binding for the Member States.

The Committee of Ministers of the Council of Europe is responsible for the control of the execution of such judgments: it is therefore responsible for ensuring that the Members found to have violated the Convention adopt all measures necessary to fulfil their obligations under the judgments of the Court. Under the Protocol 14 the Committee of Ministers, on the basis of a decision taken by a majority of 2 / 3, may initiate a proceeding before the Court in case of default by the State to comply with a decision of the Court. The Committee has also the power to require the Court's interpretation of a sentence.

An additional task assigned to the Court is also to give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols, behind the request of the Committee of Ministers. Such requests for advisory opinions are examined by the Grand Chamber, whose opinions are adopted by a majority vote.


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