the role of the ECtHR

• the structure of the ECtHR

  protocol 11 made the ECtHR a full time court and it led to backlog of cases so protocol 14 came into force in 2010

  47 full time judges work at the ECtHR and judges are chosen for their independence and high moral character.

  they sit for nine years at the ECtHR
• • a single judge will decide if the case is admissible
  • if it is a repetitive claim then the merits of the case will be decided by a committee (3 judges)
  • if it is not a repetitive claim then the Chamber (7 judges) will decide the merits of the case
  • the grand chamber (17 judges) can be requested if the case raises a serious issue of interpretation and importance - deals with infringements proceedings where the committee of ministers finds a state is not abiding by a court judgement
• • a case can be bought to the ECtHR by one citizen of a member state but only after they have tried to resolve the case in their domestic courts
  • the ECtHR interprets the convention rights and how they have been applied by the member state
  • if there has been a violation of the rights then ECtHR can decide if the state must pay damages
• according to s.2 HRA the courts must ''take into account'' prior decisions of ECtHR where relevant.

  • if conflicting UK precedent with a decision from the ECtHR then the court should follow the domestic precedent and refer the case to UK appeal court - KAY v LAMBETH
• decisions of the ECtHR do not automatically become part of UK law such as allowing prisoners the right to vote has not been implemented.
• ECtHR interprets the convention rights to ensure they are practical and effective so that individuals can access these rights

  the ECtHR doesn't have to interpret legal terms in the same way as a member state
• the rights in the convention are considered to be 'negative rights' because they tell the state NOT to do certain things

  the ECtHR interprets these negative rights are positive obligations so that the state HAS TO prevent violations from occurring
• living instrument - the ECtHR is not bound by precedent and it can interpret the conventions in a way that develops human rights in light of changing social attitudes
• proportionality - is the states interference proportionate in that it has struck fair balance between the rights of the individual and the rights of the community
• margin of appreciation - the amount of discretion that the ECtHR gives the state in their interpretation of the convention.

  also realises that what is tolerated in one state might not be in another state
• narrow margin - when the right is considered of upmost importance so less discretion is able to be given
• wide margin - where there is a lack of consensus in the member states

  more discretion is able to be given.
• a claim to the ECtHR cannot be anonymous and that it has to be bought within 6 months of the domestic courts given a decision