The populist challenge to the European Court of Human Rights

2020 ◽  
Vol 18 (2) ◽  
pp. 476-508
Author(s):  
Jan Petrov
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Extraordinary Wave ◽  
Structural Features ◽  
Institutional Setting ◽  
Ordinary People ◽  
Social Legitimacy ◽  
The Past ◽  
European Court ◽  
Careful Management

Abstract This article analyzes the European Court of Human Rights (ECtHR) from the perspective of the recent extraordinary wave of populism in Europe. It argues that populism poses a serious and distinctive challenge to the ECtHR since supranational judicial review is at odds with the populist ideology. What makes the populist challenge distinctive is the combination of the ideological basis of populism, its wide appeal and capacity to reach ordinary people, and populists’ tendency to remove limitations on their power. With respect to the last point, the article introduces a categorization of anti-court techniques and takes stock of the ECtHR’s institutional setting. It concludes that although the situation is not perfect—the budget and judicial selection are especially problematic—the ECtHR is rather well insulated from eventual attacks targeting its structural features or the judicial personnel. However, including the ECtHR in the “narrative of blame,” populism is very strong in another anti-court strategy—achieving gradual erosion of a court through delegitimization. That is particularly threatening for the ECtHR due to its vulnerability to legitimacy challenges manifested in the past decade. As a result, the populist challenge will likely require careful management of the ECtHR’s social legitimacy.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

Introduction

2020 ◽  
pp. 1-10
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Family Law ◽  
Case Law ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
Margin Of Appreciation ◽  
Growing Body ◽  
International Instruments

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law

2015 ◽  
Vol 4 (2) ◽  
pp. 303-332
Author(s):  
Salvatore Fabio Nicolosi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
International Human Rights ◽  
The Past ◽  
European Court ◽  
Triggering Factor ◽  
The Right ◽  
Human Rights Standards

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

The European Court of Human Rights and Transnational Judicial Dialogue

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Carla M Zoethout
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
Judicial Decision ◽  
Council Of Europe ◽  
Judicial Decision Making ◽  
The Past ◽  
European Court ◽  
Foreign Law ◽  
The Us

AbstractOver the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court

2008 ◽  
Vol 102 (4) ◽  
pp. 768-827 ◽  
Author(s):  
James L. Cavallaro ◽  
Stephanie Erin Brewer
Keyword(s):  
Human Rights ◽  
Union Member ◽  
First Century ◽  
African Union ◽  
Member States ◽  
The Past ◽  
European Court ◽  
Twenty First Century

Over the past few decades, regional human rights tribunals have grown in both number and activity. The European Court of Human Rights (European Court or ECHR) now receives tens of thousands of petitions and issues over fifteen hundred judgments on the merits each year. The Inter-American Court of Human Rights recently tripled the number of cases that it resolves annually. At the time of this writing, in mid-2008, Africa’s own regional human rights court, the African Court on Human and Peoples’ Rights, prepares to begin hearing its first contentious cases. Currently, sixty-eight states are subject to the decisions of the two established regional courts (forty-seven in Europe and twenty-one in the Americas), up from less than half that number twenty years ago. In the nascent African system, twenty-four African Union member states have ratified the Protocol establishing the African Court, with an additional twenty-five signatory states.

Transnational legal sites and democracy-building

2013 ◽  
Vol 39 (4-5) ◽  
pp. 471-486
Author(s):  
Seyla Benhabib
Keyword(s):  
Human Rights ◽  
Intellectual History ◽  
Fundamental Rights ◽  
International Human Rights ◽  
Uniform System ◽  
The Past ◽  
European Court ◽  
Human Rights Regime ◽  
History Of ◽  
Democracy Building

Until recently the term ‘cosmopolitanism’ was a forgotten concept in the intellectual history of the 18th and 19th centuries. The last two decades have seen a remarkable revival of interest in cosmopolitanism across a wide variety of fields. This article contends that legal developments since the 1948 Declaration of Human Rights and the rise of an ‘international human rights regime’ are at the forefront of a new cosmopolitanism. Yet there is a great deal of skepticism toward such claims on the part of those who maintain that democracy and human rights are best furthered by the nation-state framework. Still others confuse legal cosmopolitanism with the spread of a uniform system of rights across different national jurisdictions. In several writings in the past, I developed the concept of ‘democratic iterations’ to argue against such skepticism as well as misunderstandings of legal cosmopolitanism. In this article, I show how democratic iterations unfold across transnational legal sites, which encompass various national jurisdictions and through which contentious dialogues on the application and interpretation of such fundamental rights as ‘freedom of religion’ in different jurisdictions can emerge. To document such processes I focus on the Leyla Sahin v. Turkey case which was adjudicated by the European Court of Human Rights in 2005.

The Past, Present and Future of the Ne Bis In Idem Dialogue between the Court of Justice of the European Union and the European Court of Human Rights: The Cases of Menci, Garlsson and Di Puma

2018 ◽  
Vol 11 (2) ◽  
pp. 55-84
Author(s):  
Max Vetzo
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Market Abuse ◽  
The Past ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem

The cases of Menci (C-524/15), Garlsson (C-537/16) and Di Puma (C-596/16 and C-597/16) deal with the duplication of criminal and punitive administrative proceedings for the same conduct in the area of VAT and market abuse. The Court of Justice of the European Union (CJEU) held that this duplication of proceedings constitutes a limitation of the ne bis in idem principle of Article 50 of the Charter of Fundamental Rights (Charter). This infringement is only justified if the requirements of the limitation clause of Article 52(1) of the Charter are met. The judgments were highly anticipated as they constitute the response of the CJEU to the judgment in A and B v Norway delivered by the European Court of Human Rights (ECtHR), in which the ECtHR lowered the level of protection afforded by the ne bis in idem principle of Article 4 of Protocol No. 7 to the European Convention of Human Rights (A4P7 ECHR). While there are differences between the approaches taken by both courts, it appears that the reasoning of the CJEU in the judgments largely mirrors that of the ECtHR in A and B v Norway. This article frames the judgments in terms of the dialogue between the CJEU and ECtHR on the ne bis in idem principle. It does so chronologically, by focusing on the past, present and future of the ne bis in idem dialogue between both European courts.

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