User:KaiserAI/European Court of Human Rights

''Note: Preexisting text is italicized and displayed in a smaller font. All other text represents an original contribution. In total, four paragraphs were added to various sections of this article.''

Advisory opinion
'' The Committee of Ministers may, by majority vote, ask the court to deliver an advisory opinion on the interpretation of the European Convention on Human Rights, unless the matter relates to the content and scope of fundamental rights which the court has already considered. '' Since 2018, member states can similarly request advisory opinions on questions of principle concerning the interpretation or application of the Convention, on the basis of Protocol No. 16. This mechanism aims to foster dialogue between national courts and the ECtHR, thereby preempting Convention violations and minimizing the latter’s caseload. Unlike preliminary references under EU law, advisory opinions may only be solicited by the “highest courts and tribunals” of a member state. Although Article 5 of Protocol No. 16 states that “Advisory opinions shall not be binding,” they nonetheless enter the ECtHR’s case-law and may be enforced through later individual complaints if contravened.

Interim measures (New Section)
Rule 39 of the Rules of the Court permits the ECtHR to “indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.” Interim measures are binding and afford litigants temporary protections on an expedited basis, although the ECtHR has chosen to only impose them in cases concerning imminent danger to life and limb. Such measures are often deployed to prevent extradition or expulsion to countries with inadequate human rights guarantees, whereas requests to prevent potentially damaging publications or property seizures seldom elicit similar responses.

Proportionality analysis (New Section)
Proportionality analysis governs much of the Court’s jurisprudence. The guarantees of ECHR Articles 8, 9, 10, and 11 are subject to whatever limitations may be “necessary in a democratic society,” citing factors including national security, public safety, health and morals, and the rights and freedoms of others. Such conditions require the balancing of individual rights and community interests, as first articulated in the Belgian Linguistic Case. Critics maintain that proportionality engenders largely subjective rulings: a judge’s personal preferences and beliefs may color their perceptions of rights’ relative importance. The Court has established certain formulas to ensure consistency across such decisions, but these guidelines cover only a small fraction of its case-law.

European Court of Justice
'' The Court of Justice of the European Union (CJEU) is not institutionally related to the European Court of Human Rights: the two courts are related to distinct organizations. However, since all EU states are members of the Council of Europe and so are parties of the Convention on Human Rights, there are concerns about consistency in case law between the two courts. The CJEU refers to the case law of the European Court of Human Rights and treats the Convention on Human Rights as if it were part of the EU's legal system since it forms part of the legal principles of the EU member states. ''

'' Even though its member states are party to the Convention, the European Union itself is not a party, as it did not have competence to do so under previous treaties. However, EU institutions are bound under Article 6 of the EU Treaty of Nice to respect human rights under the Convention. Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign the Convention. That would mean that the Court of Justice is bound by the judicial precedents of the Court of Human Rights' case law and so is subject to its human rights law, which would avoid issues of conflicting case law between these two courts. In December 2014, the CJEU released Opinion 2/13 rejecting accession to the Convention. ''

Despite the European Union’s failure to accede to the Convention, the ECtHR has consistently held that member states are bound by ECHR guarantees even when executing and implementing EU law. Nevertheless, the Court has simultaneously sought to promote international cooperation and avoid interfering in internal Union affairs. It has balanced the conflicting aims of fostering European harmony and avoiding ECHR circumvention via the “Bosphorus Presumption,” a policy of conditional deference articulated in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland. Because the CJEU represents a “comparable” human rights enforcement mechanism, the ECtHR may presume “that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its [EU] membership.” This presumption may be refuted in any particular instances where protections of Convention rights are “manifestly deficient.”