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.

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.

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 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.

Dialogue and the Implementation of the European Court of Human Rights' Judgments

2016 ◽  
Vol 34 (4) ◽  
pp. 340-363 ◽  
Author(s):  
Elisabeth Lambert Abdelgawad
Keyword(s):  
Human Rights ◽  
Good Governance ◽  
European Convention ◽  
Laboratory Model ◽  
Constructive Dialogue ◽  
European Court ◽  
Large Panel ◽  
Speed Up ◽  
Set Up ◽  
The Impact

Due to the intergovernmental and confidential regime set up by the European Convention on Human Rights in view of supervising the execution of the judgments of the European Court of Human Rights, this field was for many years little suited to dialogue. However, a culture of dialogue has gradually emerged at the European and national levels in order to offer more transparency and legitimacy to the system; the ambitious gamble was that it would speed up and improve the compliance with the judgments of the Court. The current picture still seems to be diversified, with more bilateral and expert dialogue focused on the most serious cases at European level. Meanwhile, a strategy for a more open and constructive dialogue with a very large panel of actors seems to be promoted in some countries. Has dialogue provided a relevant laboratory model to improve good governance and compliance with the judgments of the Court? This article reviews the impact of this new practice. The author concludes that there remains large room for improvement.

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.

Climate Change Litigation and the European Court of Human Rights - A Strategic Next Step?

2020 ◽  
Vol 13 (4) ◽  
pp. 331-342
Author(s):  
Therese Karlsson Niska
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Standard Of Care ◽  
Case Law ◽  
European Convention ◽  
Climate Protection ◽  
National Courts ◽  
European Court ◽  
Senior Women ◽  
Combat Climate Change

Abstract The purpose of the article is to analyse if bringing a case before the European Court of Human Rights (ECtHR) could be impactful in forcing greater climate change action. Part of this analysis is built upon the review of two climate change cases brought before national courts, since they have different outcomes even though both use the fundamental human rights of the European Convention on Human Rights (ECHR) as their legal bases. The cases are the Urgenda Foundation v. Kingdom of the Netherlands and the Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others. The Urgenda case establishes a link between the rights in article 2 and 8 ECHR, and climate change, which creates a positive obligation for a state to protect these rights by acting to combat climate change. The Swiss Climate Protection case, however, is dismissed. Both cases highlight some of the challenges regarding climate change in relation to the fundamental human rights of the ECHR. Judgments by the ECtHR are final, and the formally and informally binding nature of case law from the court is argued to indicate the possibility of a powerful tool in relation to climate change action since 47 states will be affected by the court’s decisions. However, if a case brought before the ECtHR has an unfavourable outcome in relation to forcing greater governmental action in combating climate change, this may also have greater consequences than such an outcome of a domestic challenge, since it will set a minimum standard of care, or completely exclude climate change in relation to human rights. The article argues that it should be considered worth the identified risks to bring a claim before the ECtHR even though it is uncertain if the evolving nature of the charter is ready to establish obligations in relation to climate change, due to the unprecedented and severe threat that climate change constitutes.

Free Life after Life Imprisonment as a Human Right under the European Convention: European Court of Human Rights, Grand Chamber, Judgment of 9 July 2013, Vinter and Others v. The United Kingdom

2013 ◽  
Vol 9 (3) ◽  
pp. 501-512 ◽  
Author(s):  
Marek Szydło
Keyword(s):  
Human Rights ◽  
National Court ◽  
European Convention ◽  
Human Right ◽  
National Courts ◽  
European Court ◽  
Life Sentence ◽  
The Moment ◽  
Grand Chamber ◽  
Life Sentences

The recent judgment of the Grand Chamber of the European Court of Human Rights (‘the ECtHR’ or ‘the Court’) in Vinter and Others reflects a very significant change in the Court's attitude to those actions of the states parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’ or ‘the ECHR’) that consist in the imposition and further execution of whole life sentences. In this judgment, the Court concluded that Article 3 of the Convention – which prohibits torture, inhuman or degrading punishment – requires the reducibility of all whole life sentences as imposed by national courts, in the sense of a review mechanism which allows domestic authorities to conclude whether in the course of a life sentence the legitimate peno-logical grounds justifying the further incarceration of a life prisoner still exist. Moreover, such a mechanism or possibility for review of a whole life sentence must be provided for by a national law and, consequently, must be known to a life prisoner already at the moment of imposition of the whole life sentence. What is also important, a life prisoner, at the outset of his/her sentence, must know when (i.e. after how many years) and under what conditions a review of his/her sentence will take place or may be sought, and what he/she must do to be considered for release. Otherwise, the very imposition of a life sentence by a national court infringes Article 3 of the Convention.

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