The European Court of Human Rights

The European Court of Human Rights was set up in 1959 as part of the European Convention on the Protection of Human Rights and Fundamental Freedoms (1951). Its aims were to enforce across Europe many aspects of the Universal Declaration on Human Rights (1948). The Court was set up as a mechanism used for enforcement of the obligations, which the states had entered into. Its role is as one of the most important Courts in Europe.

Its decisions are now directly applicable in the United Kingdom since the Human Rights Act (1998) and its jurisprudence along with the articles and protocols of the ECHR laid the foundation for human rights law in most European countries. Its most significant role is as protector of fundamental human rights within the States of the Council of Europe. Since the United Kingdom became a signatory to the ECHR, it has had far more effect than any other human rights treaty. The British courts have given much weight to the jurisprudence of the European Court.

Judges in England have given heavy weight to judgements from Strasbourg so as to achieve a balanced judgement and to try and prevent UK citizens from travelling to Strasbourg to appeal. The European Court of Justice allows for a teleological interpretation, which has resulted in the development of the Convention, making it more adaptable to the needs of modern society. According to Article 38 of the ECHR, when the Court declares an application admissible it then begins examining the case, with the representatives of the parties, and may, if necessary, undertake an investigation, which the states must help with.

Also the Court will make itself available to the parties so that it may be possible to secure a friendly settlement on the basis of respect for human rights. Article 39 covers friendly settlements, where it states that if a "friendly settlement is effected, the Court shall strike the case from its lists by means of a decision which will be confined to a brief statement of fact". All hearings in the Court will be in public unless the Court decides that the case is exceptional. The Grand Chamber is the final area of appeal. Its decisions are final.

Cases can be seen in the Grand Chamber if the Chamber relinquishes it within the three months set out in article 44 (2)(b). The Chamber should only relinquish the case if it concerns a serious question or if the resolution of the question might not be in line with previous decisions of the Grand Chamber1. The judgement of the Chamber is final if the parties agree not to appeal to the Grand Chamber, or if three months have passed and the case was not referred to the Grand Chamber, or if the Grand Chamber panel rejects the request to transfer the case.

The judges will give their reasoning for their decision in any case in their judgement as well as any decisions declaring applications admissible or inadmissible. Also if there is a dissenting judge who does not agree with the judgement of the Court, or believes the judgement does not represent their exact feeling then the judge has the right to deliver a separate opinion2. One case which can be used to highlight how the Court resolves human rights disputes is X, Y and Z v the United Kingdom (1999)3.

This case was referred by the Commission, to the Chamber, within the three month period laid down by Articles 23 and 47 of the Convention. The reason for the request was to decide whether the facts of the case showed a breach of the States obligations under Article 8 of the Convention. In September 1996 the Chamber relinquished its jurisdiction to the Grand Chamber4. The Grand Chamber decided that it was not necessary to hold another hearing following the relinquishment of jurisdiction5.

Applicant X was a female-to-male transsexual, who lived with a woman, applicant Y, since 1979. In 1992 applicant Z was born to Y as a result of artificial insemination by donor (AID). Applicant X was born a female but felt masculine in many ways and as a result suffered suicidal depression during adolescence. In 1975 he began hormone treatment and to work as a man. In 1979 he began cohabiting with Y and later that year underwent genetic reassignment surgery. In 1990 X and Y applied for AID through their general practitioner.

Eventually, after an appeal to the hospital ethics committee, they were given permission to have the treatment. During the appeal at the hospital, the couple made representations with reference to a study where 37 children, who were raised by homosexual or transsexual parents or carers, were examined. The result of this study showed no evidence of "abnormal sexual orientation or any other adverse effect"6. However, the hospital committee asked X to acknowledge himself as the father of the child in the meaning of the Human Fertility and Embryology Act (1990).