The Council of Europe was formed in the aftermath of the Second World War to bring together the states of Europe to promote the rule of law, democracy, human rights and social development. For this purpose, it adopted the ECHR in 1950. The ECtHR – and the former European Commission of Human Rights – was set up under Article 19 of the ECHR to ensure that states observed their obligations under the Convention. The ECtHR does this by considering complaints from individuals, groups of individuals, non-governmental organisations or legal persons alleging viola- tions of the Convention. As at December 2013, the Council of Europe comprised 47 member states, 28 of these being also members of the EU. An applicant before the ECtHR is not required to be a citizen or a lawful resident of one of those 47 member states, except for some specific provisions. The ECtHR can also examine inter-state cases brought by one or more Council of Europe member states against another member state.
The ECHR contains few provisions expressly mentioning foreigners or limiting certain rights to nationals or lawful residents (for example, Articles 2, 3 and 4 of Protocol 4 to the ECHR and Article 1 of Protocol 7). Migration issues have generated a vast body of case law from the ECtHR, a selection of which is presented as examples in this handbook. They mainly relate to Articles 3, 5, 8 and 13 of the ECHR.
Article 1 of the ECHR requires states to “secure” the Convention rights to “every- one within their jurisdiction”. This includes foreigners; in certain specific cases, the concept of jurisdiction can extend beyond the territory of a state. A State Party to the ECHR is responsible under Article 1 of the ECHR for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations.
Article 13 of the ECHR requires states to provide a national remedy for complaints made under the Convention. The principle of subsidiarity places the primary responsibility on states to ensure their compliance with obligations under the ECHR, leaving recourse to the ECtHR as a last resort.
States have an international obligation to ensure that their officials comply with the ECHR. All Council of Europe member states have now incorporated or given effect to the ECHR in their national law, which requires their judges and officials to act in accordance with the provisions of the Convention.
The provisions of the Council of Europe’s ESC, adopted in 1961 and revised in 1996, complement the ECHR provisions in relation to social rights. As at December 2013, 43 out of the 47 Council of Europe member states had ratified the ESC. The ESC does not provide for a court, but does have the European Committee of Social Rights (ECSR), which is composed of independent experts who rule on the conformity of national law and practice within the framework of two procedures: the reporting procedure under which states submit national reports with regular intervals; and the collective complaints procedure, which allows organisations to lodge complaints. The ECSR adopts conclusions in respect of national reports and adopts decisions in respect of collective complaints. Some of its conclusions and decisions are men- tioned in this handbook.
1. ECtHR, Matthews v. the United Kingdom [GC], No. 24833/94, ECHR 1999-I, para. 32; ECtHR, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], No. 45036/98, ECHR 2005-VI, para. 153.
2. Thirty-two states are bound by the 1996 revised ESC and 11 by the 1961 Charter. The ESC offers the possibility to State Parties to sign up to specific provisions only. Annex 3 provides an overview of the applicability of ESC provisions.
3. The complaints procedure is optional (as opposed to the reporting procedure) and, as at September 2013, had been accepted by 15 states that are party to the ESC.