The Reception by Domestic Courts of the Res Interpretata Effect of Jurisprudence of the European Court of Human Rights

2019 ◽  
Author(s):  
Christos Giannopoulos
Keyword(s):  
Human Rights ◽  
Critical Analysis ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Domestic Courts

Abstract This article focuses on two subjects: the attitude of national courts towards the jurisprudence of the European Court of Human Rights and their role in the achievement of effective domestic implementation of the European Convention on Human Rights. The first topic outlines a typology of the positions adopted, which is proposed in order to underline the national strategies regarding the reception of the res interpretata effect of the Court’s judgments. The second provides a critical analysis of the mirror metaphor, which is proposed to resolve some unproven and untested assumptions that domestic courts act as puppets and cannot go beyond Convention standards without violating the Court’s authentic interpretations. In both cases, examples are given of domestic courts’ practices in order to clarify that the judicial interaction between domestic courts and the European Court of Human Rights is not always harmonious.

European Court of Human Rights and the Bulgarian Judicial System

2021 ◽  
Vol 23 (6) ◽  
pp. 535-544
Author(s):  
Aleksandur Kirkov ◽  
◽  
Ana Andonova ◽  
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Essential Feature ◽  
Methodological Approach ◽  
Scientific Work ◽  
Global Scale ◽  
Judicial System ◽  
European Convention ◽  
National Courts ◽  
European Court

Bulgaria ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1992, as such this European act has become part of our domestic legislation. Explaining in detail the differences and similarities between the European Court of Human Rights in Strasbourg and the Bulgarian judicial system, we will actually see how much they are similar. This is the purpose of the present study - comparative analysis in all aspects: territorial jurisdiction, legal jurisdiction, including procedurally legitimate persons to file complaints, procedural issues, stages of the process, court decisions and appeals. The first and most important task of the study is to get acquainted in detail with our European rights, as well as their judicial protection. On the other hand, the knowledge of the European judicial mechanisms leads to the expansion of our national horizons in a supranational perspective, to opportunities for professional realization outside the borders of the country, on a European and global scale. The research method used in the present scientific work is the comparative analysis. The methodology we refer to in preparing the analysis is based on a predetermined methodological approach and structure in conducting the analysis. The methodological approach itself includes a general overview of the legal framework, regulating the administration of justice in national courts and at European level. An essential feature of the approach used is to compare the two established legal systems, at home and in Strasbourg, at all levels, to explore links and interdependencies possible differences. Expected results: acquainting the Bulgarians with their European rights, as in case of violation of these rights, learning about the mechanisms for their protection in court. Conclusions and summaries: Bulgaria is part of the common European framework. As such, its citizens are Bulgarians, but also Europeans. Namely, as Europeans, they have rights that are guaranteed to them by Europe and that should be respected in Bulgaria. Failure to respect these European rights creates conflicts that should be resolved by both national courts and the European Court of Human Rights.

When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’

1996 ◽  
pp. 88-88
Keyword(s):  
Human Rights ◽  
National Standards ◽  
European Convention ◽  
Domestic Court ◽  
European Court ◽  
Margin Of Appreciation ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
State Interference

scholarly journals Freedom of Religion and Freedom from Religion

2016 ◽  
Vol 19 (01) ◽  
pp. 3-13 ◽  
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Well Being ◽  
European Convention ◽  
Freedom Of Religion ◽  
Religious Expression ◽  
European Court ◽  
Religious Extremism ◽  
Domestic Courts ◽  
The Right

The right to freedom of religion, enshrined in the European Convention on Human Rights has been frequently tested, both in UK courts and in the European Court of Human Rights, where successive decisions over a number of years led to the establishment of several well-known principles. However, in recent years religious extremism has brought into focus a tension between the right of freedom of religious expression and the well-being of individuals (not least children) and society. The Strasbourg court requires neutrality on the part of the state and its courts. However, unlike the European Court of Human Rights, the domestic courts have had to face situations where religious observance can be seen to be causing serious harm and where interference in religious freedom and family life has been shown to be justified.

scholarly journals “Tatprovokation” – The Legal Issue of Entrapment in Germany and Possible Solutions

2019 ◽  
Vol 20 (4) ◽  
pp. 496-509
Author(s):  
Franziska Görlitz ◽  
Juliane Hubert ◽  
Jasmin Kucher ◽  
Moritz Scheffer ◽  
Patrick Wieser
Keyword(s):  
Human Rights ◽  
Police Officers ◽  
Federal Court ◽  
Legal Issue ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Federal Court Of Justice ◽  
The Individual ◽  
Procedural Rights

AbstractIncitement by police officers is a well-known and often utilized police measure in the German investigation process. Yet, when it comes to prosecuting the perpetrators, a moral conflict arises. Should a State, bound by its own constitution and committed to protect its citizens, be allowed to incite or support a possible offender and afterwards judge on his or her wrongful actions? After Germany’s higher courts had to deal with multiple cases of entrapped perpetrators, there has been a strong debate about the admissibility, requirements, and consequences of entrapment within the German legal system. International and national courts as well as scholars represent different legal standpoints in this regard. In particular, the approaches of the European Court of Human Rights and the German Federal Court of Justice differ significantly in their results. As Germany ratified the European Convention on Human Rights and therefore has to adhere to the European Court of Human Rights’ ruling, an additional legal conflict arises. This article depicts and discusses the most relevant approaches to resolve this moral and legal conflict and satisfy both the need for effective prosecution and the procedural rights of the individual person subject to the act of entrapment. Additionally, recent legislative ambitions are presented.

scholarly journals “Verticalised” cases before the European Court of Human Rights unravelled: An analysis of their characteristics and the Court’s approach to them

2020 ◽  
Vol 38 (4) ◽  
pp. 246-263
Author(s):  
Claire Loven
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Main Topic ◽  
European Convention ◽  
Private Actor ◽  
European Court ◽  
Domestic Courts ◽  
Different Types ◽  
Private Actors ◽  
Domestic Level

Based on Article 34 European Convention on Human Rights, individual applications must be directed against one of the Convention States. Originally ‘horizontal’ cases therefore must be ‘verticalised’ in order to be admissible. This means that a private actor who had first brought a procedure against another private actor before the domestic courts, must complain about State (in)action in his application to the European Court of Human Rights. Recently, some scholars and judges have raised procedural issues that may arise in these cases, but generally, these ‘verticalised’ cases have remained underexplored. To unravel verticalised cases before the ECtHR and to better understand procedural issues that may arise from them, this article provides a deeper understanding of the origins of verticalised cases and the Court’s approach to them. It is explained that verticalised cases before the ECtHR can be very different in nature. These differences are rooted in the different types of horizontal conflicts that may arise on the domestic level, the different relations between private actors they may concern, and the different Convention rights that may be at stake. The wide variety of verticalized cases is also reflected in the Court’s approach to them, as is the second main topic that the present article explores.

scholarly journals General and Particular Approaches to Implementation of theEuropean Convention on Human Rights

2018 ◽  
Vol 55 ◽  
pp. 248-292
Author(s):  
VLADIMÍRA PEJCHALOVÁ GRÜNWALDOVÁ
Keyword(s):  
Human Rights ◽  
National Level ◽  
Case Law ◽  
European Convention ◽  
Constitutional Courts ◽  
The Czech Republic ◽  
Human Rights Protection ◽  
Rights Protection ◽  
National Courts ◽  
European Court

AbstractThis article deals with the implementation, at the national level, of European human rights protection standards as enshrined in theEuropean Convention on Human Rights(ECHR) and interpreted by the European Court of Human Rights (ECtHR). It discusses the principles of interpretation of theECHRby the ECtHR, the interaction and mutual dialogue between the ECtHR and national courts, and the approach of the latter to interpretation and application of the case law of the ECtHR. Using the concrete examples of France and the Czech Republic as case studies, it is shown to what extent and how European constitutional courts take into account and apply the letter of the Convention and its interpretation by the ECtHR.

Advisory jurisdiction and the European Court of Human Rights: a magic bullet for dialogue and docket-control?

Legal Studies ◽  
2014 ◽  
Vol 34 (3) ◽  
pp. 444-468 ◽  
Author(s):  
Kanstantsin Dzehtsiarou ◽  
Noreen O'Meara
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Magic Bullet ◽  
Reform Initiative ◽  
Positive Effects ◽  
National Courts ◽  
Constructive Dialogue ◽  
European Court ◽  
Advisory Opinions

Protocol 16 ECHR will provide for an extension of the advisory jurisdiction of the European Court of Human Rights (ECtHR), enabling highest national courts to request advisory opinions on questions of principle concerning the interpretation of the European Convention on Human Rights (ECHR) or its protocols. This extension of the ECtHR's advisory jurisdiction aims to achieve two goals: a reduction in the ECtHR's excessive docket, and the enhancement of dialogue between the ECtHR and (highest) national courts. While the aims of this reform initiative are laudable, we argue that Protocol 16 is likely to fail to achieve its objectives. Our analysis suggests that rather than facilitating the Court's adjudicatory function, extended advisory jurisdiction has the potential to impact on the Court's constitutionalist function in a manner that can be better achieved through the Court's contentious cases. The burden that this procedure will place on the Court's already overstretched resources would risk delays to contentious cases and potentially undermine judicial comity should requests for advisory opinions be declined. Furthermore, evidence of ‘constructive’ dialogue between highest national courts and the ECtHR is emerging in contentious cases without the need for a reformed advisory opinions mechanism. Rather than achieving its objectives, Protocol 16 risks exacerbating the Court's backlog and nullifying the positive effects of advisory opinions on dialogue.

scholarly journals Case-law of the European court of human rights and its value to administrative justice

2019 ◽  
pp. 17-20
Author(s):  
Kristina NIKONOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Association Agreement ◽  
National Courts ◽  
Leading Role ◽  
European Court ◽  
Starting Point ◽  
Administrative Proceedings ◽  
Administrative Justice

More than twenty years have passed since Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms in 1997 and recognized the jurisdiction of the European Court of Human Rights (ECtHR). On September 16, 2014 the European Parliament ratified the Association Agreement with the EU synchronously with the Verkhovna Rada of Ukraine. European integration processes have once again begun to play a leading role in the implementation of legal reform in Ukraine aimed at introducing the fundamental provisions of the European Convention on Human Rights (ECHR). First and foremost, the implementation of the rule of law principle based on the case-law of the European Court of Human Rights. In connection with this starting point, the ECtHR's case-law is considered to be a source of law, in particular in administrative proceedings. The main findings are based on the fact that the ECtHR's practice is inextricably linked to the Convention, which the ECtHR interprets in its decisions when dealing with specific cases. Some attention has been paid to the analysis of the provisions of the Law of Ukraine “On the enforcement of decisions and the application of the case-law of the European Court of Human Rights”. Article 17 of this Law provides for the courts using the ECHR and practicing the case-law of the ECtHR's as a source of law. Article 18 of the aforementioned Law defines the order of reference in national courts’ decisions to the ECHR and ECtHR's practice. It is emphasized that according to Article 1 of the above Law, it is necessary to talk about the ECtHR’s practice in a broad aspect, and not only about decisions regarding Ukraine. It is revealed that the main discussion is on the precedental nature of ECtHR’s decisions. As scientists understand the precedental nature of EctHR’s decisions, this question has taken the appropriate place in the study. As a result, it is concluded that the practice of the ECtHR has a precedent form the content of which is based on the legal position of the official interpretation of the provisions of the ECHR. It is in this form that it is appropriate to apply the case-law of the ECtHR's in the area of administrative justice.

scholarly journals ‘To me, fair friend, you can never be old’, William Shakespeare, ‘Sonnet 104’: ECHR at 70 Rudolf Bernhardt Lecture, 202

2021 ◽  
Vol 81 (4) ◽  
pp. 895-916
Author(s):  
Başak Çalı
Keyword(s):  
Human Rights ◽  
William Shakespeare ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
Domestic Courts ◽  
The Rich ◽  
Good Proxy ◽  
Mature Part ◽  
Over Time

This article undertakes a survey of the changes in the structure of the interpretive doctrines of the European Court of Human Rights (the Court) over time in an exploration of the aging of the European Convention on Human Rights (ECHR or the Convention) on its 70th anniversary. It argues that the Court’s interpretive doctrines that seek to give due deference to national rights traditions, canons and institutions have become increasingly pervasive in the Court’s procedural and substantive case law in the last two decades. This, in particular, has come at a loss for interpretative doctrines that interpret the Convention as a practical and effective living pan-European instrument. This argument is built in four parts. First it offers a defence of why a study of the interpretive doctrines of the Court over time is a good proxy for studying the ECHR’s ageing process. In the second part, it discusses the rich doctrinal forms of due deference and effective interpretation in the case law of the Court – both young and mature. Part three explains how the judicialisation and expansion of the European human rights system in late 1990 s transitioned to a more heightened and sophisticated focus on due deference doctrines in the Court’s case law. Finally, part four examines whether the recent judicial innovations under the Court’s Article 18 case law and the widely celebrated success of increased ownership of the Convention by domestic courts can act as counter points to the argument that the effective interpretation principle has suffered a loss as the Convention has aged, concluding that none of this may offset the fact that the Convention at 70 is more conservative in spirit than its younger self.

The European Legal Order

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Order ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Domestic Courts ◽  
The Law ◽  
The Eu

Chapter 3 shows that the confluence of the law of the European Union and of the European Convention on Human Rights is a European legal order worthy of the name. It outlines the law of the European Union after the Lisbon Treaty, setting out its principles and the ways in which competences are shared in the EU post Lisbon, between the European Council, the Council, the Commission, the European Parliament, and the Court of Justice of the European Union. The chapter further sets out the outline of the system of rules of the European Union. Then the chapter turns to the characteristics of what has been termed a Europe of human rights, and how the European Court of Human Rights (ECHR), in conjunction with domestic courts, police the law of the European Convention on Human Rights. Finally, the chapter brings together the law of the European Union and the ECHR.

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