The European Court under human rights
The European convention which has come into force on September, 3rd, 1953 on protection of human rights and basic freedom not only has proclaimed basic human rights, but also has created the special mechanism of their protection.
Originally this mechanism included three bodies which bore the responsibility for maintenance of observance of the obligations taken up by the state-participants of the Convention: the European Commission of Human Rights, the European Court under human rights and Committee of ministers of the Council of Europe.
Since November, 1st, 1998, after coming into force of the Report № 11, first two of these bodies have been replaced by uniform, constantly operating(working) European Court under human rights. Its(his) site - the Palace of human rights in Strasbourg (France) where there is also a Council of Europe.
According to initial system all the complaints submitted by individual applicants or the state-participants of the Convention, became a subject of preliminary consideration of the European Commission of Human Rights. It(she) considered(examined) a question on their acceptability and at the positive decision submitted the case to the European Court under human rights for acceptance of the final decision having a binding force. If business was not transferred(transmitted) in Court, it was solved Committee of ministers. Since October, 1st, 1994 the right has been given to applicants to transfer(transmit) the business(affairs) in Court under the complaints recognized by the Commission comprehensible.
The European Court is called to provide strict observance and execution(performance) of norms(rates) of the Convention by its(her) state-participants. It(he) carries out this problem(task) by consideration and sanctions of the concrete affairs accepted by it(him) to manufacture on the basis of individual complaints, submitted by the physical person(face), group of persons(faces) or the nongovernmental organization. Submission of the complaint to infringement of the Convention by the state - a member of the Council of Europe from other state-member is possible(probable) also.
Having begun(started) the activity in 1959, the European Court by the end 1998 has considered(examined) more than thousand the affairs, overwhelming majority from which citizens under complaints. Today it is possible to tell, that all the norms(rates) containing in section I of the Convention, and also the norms(rates) of Reports supplementing this section, are applied how they are interpreted in decisions of the European Court.
Ratification of the European convention by Russia allows all persons(faces) who are being under its(her) jurisdiction, to address in the European Court if they consider(count) the rights broken(disturbed) that proves to be true clause(article) 46 (ch. 3) Constitutions of the Russian Federation in which it is spoken, that " everyone has the right to address according to the international contracts of the Russian Federation in interstate bodies on protection of the rights and freedom of the person if available interstate means of a legal protection " are settled(exhausted) all.
Thus before the complaint will be brought an action, strict observance of several indispensable conditions is necessary.
First, a subject of the complaint can be right only, guaranteed by the Convention or its(her) Reports. The list of these rights is wide enough, but in it(him) there are no some rights, known to the newest constitutional legislation. In particular, the Constitution of the Russian Federation (chapter(head) 2 " the Rights and freedom of the person and the citizen "), covering all those human rights about which the Convention speaks, names also some other, for example, the right to work, the right to social security, etc. These rights are fixed in other Convention of the Council of Europe - the European social charter, however jurisdiction of the European Court is based(founded,established) exclusively on the Convention on protection of human rights and basic freedom.
Secondly, the complaint can proceed only from the victim. Even in that case when the complaint association of persons(faces) submits, everyone should prove the concrete personal claims.
Thirdly, the complaint should be submitted not later than in six months after final consideration of a question by competent state body.
Fourthly, to complain it is possible only on those infringements which took place after date of ratification of the Convention Russia.
Fifthly, that the complaint has been recognized comprehensible in essence, by the applicant interstate means of protection of the right, and first of all judicial means of such protection should be settled(exhausted) all.
Ratification of the Convention and recognition of jurisdiction of the European Court means as well that activity of all Russian bodies of the government, in particular judicial, their decisions and used procedures, no less than decisions of a legislature, should not contradict positions of the Convention, as in conformity with clause(article) 15 (ch. 4) Constitutions of the Russian Federation it(she) forms a component of the Russian legal system.
The European Court is not highest authority in relation to judicial system of the state-participant of the Convention. Therefore it(he) cannot cancel the decision which has been born(which has been taken out) by body of the government or national court, does not give instructions(indications) to the legislator, does not carry out the abstract control of the national legislation or judiciary practice, has no right to give(allow) the order about acceptance of the measures having legal consequences. The court considers(examines) only concrete complaints to establish(install), whether infringements of requirements of the Convention have really been admitted(allowed). However the Court has the right to award " fair satisfaction of the claim " in the form of financial indemnification of a material damage and moral harm, and also compensation to the gained party(side) of all costs and charges.
For all long-term practice of the European Court it has not been fixed(recorded) any case of default by the states - members of the Council of Europe of decisions of Court. Other, according to the Charter of the Council of Europe, can lead to stay of membership of the state and, eventually, according to the decision of Committee of ministers - to exception of the state of structure of the Council of Europe. In case the state ascertains, that without change of the legislation or judiciary practice the situation considered(examined) by the European Court can repeat, it, as a rule, carries out necessary innovations.
In conformity with clause(article) 46 of the Convention supervision of execution(performance) of decisions of Court carries out Committee of ministers of the Council of Europe which in execution(performance) of this norm(rate) is called to watch(keep up) not only duly payment of monetary indemnification, but also behind how the state-participant of the Convention corrects become obvious in a view of the decision of Court of a divergence of norms(rates) of its(his) internal right or a position of judiciary practice with standards of the Council of Europe. Legally the decision which has been born(which has been taken out) by Court, is obligatory only for the state - the respondent on business. However quite often importance of decisions of Court leaves for national limits, influencing on the right and judiciary practice and other state-participants of the Convention.
by businesscrp.com
