- The European Court of Human Rights (ECtHR)
- Procedure and Applications to the ECtHR
- The European Court of Justice
- Procedure and References to ECJ
- The Charter of Fundamental Rights of the European Union
It is important to distinguish between the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). The CPS are more likely to be involved in the latter.
For further information on the Human Rights Act 1998 (HRA) and the reliance on Convention rights within the domestic Courts, prior to taking any challenge to the ECtHR, please see the substantive legal guidance chapter on Human Rights and Criminal Prosecutions.
At the time of compiling this guidance, the United Kingdom has voted to leave the European Union. The final extent of the negotiations and deal with European Union has yet to be finalised. Once it has, this guidance will be updated.
The European Court of Human Rights (ECtHR)
The ECtHR was established in 1959, following the adoption of the European Convention on Human Rights in 1950 by the Council of Europe, of which the United Kingdom is a member. The Court is based in Strasbourg, France and is not a European Union body. There are 47 Judges (one for every member state of the Council of Europe), divided into 5 sections. Each section has its own President, Vice President and other Judges. The Judges sit as a Chamber within a given section. Each Judge sits for a term of 9 years.
The Court has jurisdiction in respect of cases alleging violations of rights protected by the European Convention of Human Rights, that are brought against a state party either by another state, or by an individual applicant. Article 34 of the Convention states that the Court may receive application from “any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.”
Procedure and Applications to the ECtHR
The HRA enables applicants to bring actions within the domestic courts, saving time and money. Previously anyone alleging breaches of their Convention rights had to go to the ECtHR in Strasbourg. Individuals may also take cases to the ECtHR, however only when domestic remedies have been exhausted. Petitions to the ECtHR must be brought within 6 months, of the date when the final decision is taken.
Section 2 of the Human Rights Act provides those courts who determine questions relating to a Convention right take in account jurisprudence of the ECtHR. Jurisprudence consists of decisions of the ECtHR, the European Commission of Human Rights and the Committee of Ministers of the Council of Europe. These are not directly binding on courts in England and Wales. For further information of interpreting law under the convention – see Human Rights and Criminal Prosecutions legal Guidance.
Applications require a governmental response, which are co-ordinated by the Foreign & Commonwealth Office as the lead department for application arising out of criminal prosecutions. The CPS may face actions brought on alleged failures to act in way which are compatible with the HRA.
The European Court of Justice
The European Court of Justice (also referred to as Court of Justice of the European Union), was established in 1952, and is located in Luxembourg. The Court is a European Union body with jurisdiction over questions of European law. The purpose of the Court is to ensure European Union (EU) Law is interpreted and applied the same in every EU country. The Court settles legal disputes between national governments and EU Institutions.
The Court is divided into 2 courts:
- The Courts of Justice deals with requests for preliminary rulings from national courts.
- The General Court rules on actions for annulment brought by individuals, companies and in some cases EU Governments.
The Court of Justice contains 1 Judge from each EU country, plus 11 advocates general. The General Court contains 47 Judges and in 2019 this will increase to 56 – 2 Judges from each country.
Procedure and References to ECJ
Within the Court of Justice, each case is assigned 1 Judge and 1 advocate general, and cases are processed in 2 stages:
- Written stage – The parties provide the court with written statements. Observations can be submitted by national authorities, EU institutions and private individuals. At a general meeting of the court, Judges are allocated to the case (3, 5 or 15). Decision is taken whether a hearing (oral stage) is required and if opinion from the advocate general is needed.
- Oral stage – Lawyers from both sides put their case to the Judges and advocate general, who question them. Opinion from the advocate general is provided after the hearing, following this the Judges deliberate and provide their verdict.
Within the General Court the method is similar, except cases are usually conducted with 3 Judges and no advocate general.
Action against an EU institution can be brought directly before the General Court, when a decision by an EU institution has affected the individual or company. Or indirectly through the national courts, who may decide to refer the case to the Court of Justice.
If a question of European Community law is raised and the Crown Court or the Court of Appeal cannot give judgment without a decision on that question, the Courts can refer the question to the ECJ for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. Part 44 of the Criminal Procedure Rules specifies the procedure to be followed.
Within the Magistrates’ Court, a similar procedure is followed whereby the points of law to be referred for decision are specified by order of the Court.
The Charter of Fundamental Rights of the European Union
The Charter was drafted by the European Union and is interpreted by the ECJ. It became legally binding on EU member states when the Treaty of Lisbon was enacted in December 2009. The Charter draws together the fundamental rights of everyone living within the EU into a single document.
The Charter is composed of all of the rights found in the case law of the ECJ, rights and freedoms enshrined in the ECHR and other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments.
Within the Charter there are 6 titles; dignity, freedoms, equality, solidarity, citizens’ rights and justice. The Charter is consistent with the ECHR and, where they overlap, their meaning and scope are the same. The Charter is binding on the UK, but only when the UK is implementing EU law.