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  • A Comparative View of Individual Petition Procedures under the European Convention on Human Rights and the International Covenant on Civil and Political Rights *
  • Liz Heffernan (bio)

I. Introduction

The present discussion examines the right of individual petition as exercised in two of its most significant guises, the European Convention on Human Rights (European Convention or ECHR) 1 and the International Covenant on [End Page 78] Civil and Political Rights (International Covenant or CCPR). 2 This examination is conducted primarily from the standpoint of the individual human rights claimant who is presented with the option of instituting proceedings under the European Convention before the European Commission of Human Rights (European Commission or Commission) and European Court of Human Rights (European Court or Court) in Strasbourg, 3 or under the International Covenant before the Human Rights Committee (Committee or HRC) in Geneva. 4

For many years, the adjudication of such proceedings fell exclusively to the European Commission and Court of Human Rights, and it remains the case today that the road to Strasbourg epitomizes the ultimate human rights quest for Europeans aggrieved at the failure of national authorities and domestic legal systems to vindicate their rights. Nevertheless, the European Convention no longer represents the exclusive source of redress, although it remains dominant. 5 As European states have gradually embraced United [End Page 79] Nations human rights supervision, the number and range of possibilities for relief has expanded for the European populous. 6 In particular, a steady stream of state accessions to the International Covenant has fostered a growing awareness among nongovernmental organizations (NGOs) of its operation. 7 This awareness may potentially lead to an increasing willingness on the part of individuals to access the complaints mechanism contained in the International Covenant’s First Optional Protocol (OP). 8

The broad similarities between the European Convention and the International Covenant are more striking than the differences, both in terms of substance and procedure, yet those differences may prove significant. On the basis of a comparison with the Strasbourg system (or, equally, independent of any such comparison), certain features and characteristics of the Geneva system may attract the human rights claimant. At the same time, individuals continue to direct complaints to Strasbourg in substantially greater and ever increasing numbers. The European Convention has [End Page 80] become “a victim of its own success,” 9 in that the workload of the European Commission of Human Rights has proliferated to such an extent that major institutional reform is now a certainty. 10

In the meantime, the weight of the Strasbourg docket tests the capacities of the Commission to its limits, leading to inevitable delay and perhaps an element of rigidity in the processing of complaints. The rate of inadmissibility findings in Strasbourg is staggeringly high. 11 Regardless of the substantive merits of the European Convention and the considerable stature of its Court, such pragmatic concerns may encourage individuals to seek out an alternative remedy in Geneva.

These and other factors suggest that the European human rights claimant should explore the institutional and substantive subtleties surrounding the operation of the two treaties, to be astute to their relative strengths and weaknesses and poised to pursue the avenue which promises the most advantageous strategy and result in the particular case. The present discussion, directed toward procedural rather than substantive aspects of the right of individual petition, also seeks to prompt reflection of a more general nature regarding the coexistence and interaction of global and regional systems for the protection of human rights.

II. Background

A. The Emergence of Coexistence

The response of European states to the impetus for action following the establishment of the Universal Declaration of Human Rights 12 was more rapid than in any other arena, global or regional. As early as 1950, the newly-formed Council of Europe opened for signature a comprehensive catalogue of civil and political rights enshrined in the European Convention. 13 The mechanisms established to enforce such obligations created a precedent [End Page 81] of even more radical dimension: the creation of independent international institutions, empowered to adjudicate upon complaints of state human rights abuse. 14 With the entry into force of the European Convention in 1953, 15 an institutionalized system for...

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