5. The doctrine of judicial precedent

2020 ◽  
pp. 163-208
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley ◽  
Birju Kotecha
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Appellate Court ◽  
The European Union ◽  
Stare Decisis ◽  
European Court ◽  
Rules And Principles ◽  
The Relationship

This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). This chapter discusses the rules and principles of the doctrine of judicial precedent, including how precedents are created, developed, and followed. The chapter considers the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and it also highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. Again, the relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.

5. The doctrine of judicial precedent

2018 ◽  
Author(s):  
Steve Wilson ◽  
Helen Rutherford ◽  
Tony Storey ◽  
Natalie Wortley
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
The European Union ◽  
Stare Decisis ◽  
Court Of Justice ◽  
European Court ◽  
Ratio Decidendi ◽  
The Relationship

Judge-made law to be found in the case law is governed by the doctrine of judicial precedent. The rule on which a case is decided is called the ratio decidendi and other statements of law not affecting the outcome of a case are termed obiter dicta. Whether one court is bound by the ratio decidendi of another court depends upon the position of the court in the hierarchy of the hierarchy of the courts. The doctrine of binding precedent is alternatively known as the doctrine of stare decisis. A precedent may be avoided by the processes of overruling, distinguishing and reversing. The relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights is considered.

The Relationship Between the EU Charter of Fundamental Rights and the European Convention on Human Rights: an Originalist Analysis

2015 ◽  
Vol 11 (3) ◽  
pp. 482-511
Author(s):  
Stephen Brittain
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

Judicial Dialogue between the European Court of Human Rights and the Court of Justice of the European Union in the Field of Legal Liability for Posting Hyperlinks

2019 ◽  
Vol 21 (5) ◽  
pp. 432-448
Author(s):  
Bartłomiej Oręziak
Keyword(s):  
European Union ◽  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
The Internet ◽  
The European Union ◽  
Functional Interpretation ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

Abstract This paper discusses the judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union regarding the placing of hyperlinks on the internet. Firstly, the case law of the CJEU in the light of the linkage is analysed. This shows the scope of restrictions created by this judicial authority in the area of copyright. Secondly, the judgment of the ECHR will be cited and analysed as regards the relationship between placing hyperlinks on the internet and freedom of expression. There is a judicial dialogue with the CJEU, which focuses attention on the human rights aspect of hyperlinks. Thirdly, the correlation between the jurisprudence of the CJEU and the ECHR will be analysed, including a functional interpretation. The paper ends with a discussion about the potential of this judicial dialogue for the wider purpose of building an optimal model for European dialogue.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

Ne Bis Interpretatio In Idem?The Two Faces of theNe Bis In IdemPrinciple in the Case Law of the European Court of Justice

2017 ◽  
Vol 18 (1) ◽  
pp. 39-58 ◽  
Author(s):  
Alessandro Rosanò
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Court Of Justice ◽  
Antitrust Law ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Regional Custom

The meaning ofidemin thene bis in idemprinciple is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning thene bis in idemprinciple.

scholarly journals Victim Participation in the Criminal Justice System in the European Union through Private Prosecutions: Issues Emerging from the Jurisprudence of the European Court of Human Rights

2016 ◽  
Vol 24 (2-3) ◽  
pp. 107-134 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
European Union ◽  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Case Law ◽  
European Countries ◽  
The European Union ◽  
European Court ◽  
The Right

Private prosecutions are one of the ways through which crime victims in many European countries participate in the criminal justice system. However, there seems to be a reluctance at the Council of Europe level to strengthen a victim’s right to institute a private prosecution. In a 1985 Recommendation, the Committee of Ministers stated that ‘[t]he victim should have the right to ask for a review by a competent authority of a decision not to prosecute, or the right to institute private proceeding.’ Later in 2000 in the Recommendation Rec (2000)19 on the role of public prosecution in the criminal justice system, the Committee of Ministers calls upon Member States to ‘authorise’ victims to institute private prosecutions. Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 is silent on private prosecutions. The dg Justice Guidance Document related to the transposition and implementation of Directive 2012/29/eu of the European Parliament and of the Council of 25 October 2012 discourages private prosecutions. However, private prosecutions take part in many European countries. It is thus important to highlight some of the issues that have emerged from different European countries on the issue of private prosecutions. Case law from the European Court of Human Rights shows that private prosecutions take place in many European countries. This article, based on case law of the European Court of Human Rights, highlights the following issues with regards to private prosecutions: the right to institute a private prosecution; who may institute a private prosecution? private prosecution after state declines to prosecute; state intervention in a private prosecution; and private prosecution as a domestic remedy which has to be exhausted before a victim of crime approaches the European Court of Human Rights. The author argues that there is a need to recognise the right to private prosecution at the European Union level.

scholarly journals The Right to Religious Autonomy and the Case-Law of the European Court of Human Rights

2020 ◽  
pp. 239-249
Author(s):  
Anastasia A. Isaeva ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The European Union ◽  
Freedom Of Conscience ◽  
Internal Governance ◽  
European Institutions ◽  
European Court ◽  
Religious Associations ◽  
The Right

In this study, the author addresses the problem of the definition and structure of the right to religious autonomy. The object of the study was the content of the two manifestations of this right that the author identified: internal governance and doctrinal autonomy in the practice of the European Court of Human Rights. The aim of this article is to determine the main areas of protection of the right to religious autonomy of religious associations and the positive experience applicable in the Russian Federation. The author describes the role of the right to religious autonomy, which is an integral part of pluralism in a democratic society and, therefore, acts as a center for protection provided by freedom of conscience. The study is based on the theoretical material of the works of both Russian (P.V. Sergeev, Yu.E. Fedotova, M.O. Shakhov) and foreign (M.E. Chopko, M.F. Moses) researchers. The extensive law enforcement practice of the European Court of Human Rights and the regulations of the European Union are also used. The methodological basis of the study is dialectical, comparative legal, formal legal, and other methods. In particular, the use of the dialectical method helped to determine the content of the concept of the right to religious autonomy, to study the dynamics of the legal positions of the European Court of Human Rights regarding a “balanced approach” to protect the autonomy of the internal management of religious associations. The use of comparative legal and formal legal methods helped to identify correlations between the case-law of the European Court of Human Rights and acts adopted within the European Union. The use of the functional method made it possible to investigate the place and role of European institutions and the nature of their governing influence on the provision and protection of the right to religious autonomy to various religious associations, including those representing a religious minority. As a result, the author comes to the conclusion that religious autonomy in its two possible manifestations—internal governance and doctrinal autonomy—directly follows from the content of the powers of freedom of conscience. Both of the manifestations are protected by European regulations although such protection cannot be considered as absolute. On the one hand, the right to religious autonomy is an integral part of the external manifestation of religious beliefs; on the other, its universal protection will jeopardize the protection of the rights of others. Nevertheless, in a situation in which the governing influence of European states is limited and the enforcement practice of the European Court of Human Rights is not entirely consistent, it seems that European institutions are aware of the importance of the right to religious autonomy. Therefore, the authorities resolve problems associated with its implementation pragmatically, trying to balance it with other rights and legitimate interests.

scholarly journals Protection of Whistleblowers by the European Union, the Council of Europe, and the European Court of Human Rights

2021 ◽  
Vol 1 ◽  
pp. 25-36
Author(s):  
Sára Kiššová
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Financial Interests ◽  
Internal Sources ◽  
Illegal Activities

Whistleblower protection in the European Union is undergoing significant developments. The new Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law sets a minimum standard for the protection of whistleblowers. It is awaiting implementation in Member States' national law by December 2021. However, a certain level of protection is also guaranteed by the European Court of Human Rights case law principles. Reports of illegal activities provided from close internal sources can strengthen the protection of the EU's financial interests. Adequate protection is needed to prevent retaliation against whistleblowers. As the deadline for transposing this directive approaches, the article aims to analyse the Directive 2019/1973 and compare it with the protection guaranteed by Article 10 of the European Convention on Human Rights.

The European Union and the Territorial Scope of European Territories

2007 ◽  
Vol 38 (1) ◽  
pp. 51 ◽  
Author(s):  
Jacques Ziller
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Eu Member States ◽  
Court Of Justice ◽  
European Court ◽  
Overseas Territories ◽  
Relationship Of ◽  
The Relationship

In this paper Professor Ziller addresses the intriguing question of the relationship of the European Union – which is not a state and which has no territory of its own – to the territories of EU Member States. The paper provides a survey of the overseas territories affected and the evolution of the case law of the European Court of Justice on the extent to which the provisions of the EC Treaty apply to the European territories overseas.

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