Are Austrian Courts Obliged to Consider the Jurisprudence of the European Court of Human Rights when Interpreting the ECHR?

ICL Journal ◽  
2014 ◽  
Vol 8 (2) ◽  
Author(s):  
Claudia Mayer ◽  
Herwig Wutscher
Keyword(s):  
Case Law ◽  
Individual Case ◽  
Legal Order ◽  
Eu Law ◽  
Legal Certainty ◽  
Council Of Europe ◽  
Limited Effect ◽  
Binding Effect ◽  
European Court ◽  
The Individual

AbstractAccording to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demon­strate that such an obligation follows from the system and telos of the ECHR and the con­stitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and ar­gue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.

3. The Sources, Forms, and Individual Remedies of EU Law

2016 ◽  
Author(s):  
Nigel Foster
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Order ◽  
European Court Of Justice ◽  
Primary Sources ◽  
Eu Law ◽  
European Court ◽  
Questions And Answers ◽  
State Liability ◽  
The Eu

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter includes questions on a wide variety of often overlapping points concerned with the sources of European Union (EU) law. The sources of law are the Treaties which are regarded as primary sources and secondary legislation which can be enacted by the institutions of the Union by virtue of the powers given by the Member States and which are contained in the Treaties. Additional sources of law in the EU legal order are agreements with third countries, general principles and the case law of the European Court of Justice (ECJ) establishing, amongst other case law developments, the doctrine of direct effects, supremacy of EU law and state liability.

The Reception Process in Austria and Switzerland

2008 ◽  
Author(s):  
Daniela Thurnherr
Keyword(s):  
Human Rights ◽  
Early Stage ◽  
Case Law ◽  
Legal Order ◽  
The Other ◽  
Council Of Europe ◽  
Starting Position ◽  
European Court ◽  
The Status ◽  
The Common

This chapter discusses the reception of the ECHR in Austria and Switzerland. Topics covered include the accession and ratification of the ECHR in both countries, the status of the ECHR in national law, an overview of the activity of the European Court of Human Rights, and the ECtHR's case law and its effects on the national legal order. Although both countries joined the ECHR at a relatively early stage, this starting position led to different outcomes. The main reason is because the common denominators of neutrality and federalism in these two countries are actually rather small: as Austria follows a very different concept of neutrality, it did not face any (political) difficulties before and during the ratification process. Switzerland, on the other hand, was very reluctant to join the Council of Europe and careful to avoid any concessions with regard to neutrality.

scholarly journals The concept of ‘internal judicial independence’ in the case law of the European Court of Human Rights

2019 ◽  
Vol 15 (1) ◽  
pp. 104-133 ◽  
Author(s):  
Joost Sillen
Keyword(s):  
Human Rights ◽  
Judicial Independence ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
Member States ◽  
European Court ◽  
The Individual ◽  
Communist Countries

Internal judicial independence as a new element of the case law of the Strasbourg Court on Article 6 of the European Convention on Human Rights – The Court has only found violations of internal judicial independence in cases against former communist countries – Relevance of the case law for other member states of the Council of Europe – Internal judicial independence as part of the requirement of an impartial tribunal? – Importance of the independence of the individual judge

scholarly journals Abstract and Concrete Reasonableness Review by the European Court of Human Rights

2020 ◽  
Vol 1 (2) ◽  
pp. 218-247
Author(s):  
Janneke Gerards
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Individual Case ◽  
Individual Decision ◽  
European Court ◽  
Considerable Confusion ◽  
The Individual ◽  
Second Category ◽  
Best Fit

Abstract In many cases, the ECtHR is clearly asked to examine an individual decision, such as an administrative or court decision, but many other applications concern the reasonableness of interferences caused by national legislation. At present, there appears to be considerable confusion and controversy with the Court’s judges as to whether its review in the second category of cases should be concrete (focussing on the individual case only), abstract (focussing on the legislative system as a whole), or both (or a hybrid). This article presents a systematic and qualitative analysis of the Court’s case law to find out which approaches it takes to the reasonableness review of legislation in which types of cases. Based on the results of the analysis it further endeavours to answer the question of which approach would best fit the Court’s double role of delivering both individual and general justice.

Shoulder Pain at Work: Causation Analysis

2017 ◽  
Vol 22 (1) ◽  
pp. 11-16
Author(s):  
Joel Weddington ◽  
Charles N. Brooks ◽  
Mark Melhorn ◽  
Christopher R. Brigham
Keyword(s):  
Epidemiological Data ◽  
Case Law ◽  
Individual Case ◽  
Shoulder Injury ◽  
Work Related ◽  
Clear Cut ◽  
The Individual ◽  
Causation Analysis ◽  
Injury Causation ◽  
Relevant Factors

Abstract In most cases of shoulder injury at work, causation analysis is not clear-cut and requires detailed, thoughtful, and time-consuming causation analysis; traditionally, physicians have approached this in a cursory manner, often presenting their findings as an opinion. An established method of causation analysis using six steps is outlined in the American College of Occupational and Environmental Medicine Guidelines and in the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition, as follows: 1) collect evidence of disease; 2) collect epidemiological data; 3) collect evidence of exposure; 4) collect other relevant factors; 5) evaluate the validity of the evidence; and 6) write a report with evaluation and conclusions. Evaluators also should recognize that thresholds for causation vary by state and are based on specific statutes or case law. Three cases illustrate evidence-based causation analysis using the six steps and illustrate how examiners can form well-founded opinions about whether a given condition is work related, nonoccupational, or some combination of these. An evaluator's causal conclusions should be rational, should be consistent with the facts of the individual case and medical literature, and should cite pertinent references. The opinion should be stated “to a reasonable degree of medical probability,” on a “more-probable-than-not” basis, or using a suitable phrase that meets the legal threshold in the applicable jurisdiction.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

scholarly journals Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions

2015 ◽  
Vol 16 (5) ◽  
pp. 1073-1098 ◽  
Author(s):  
Mattias Derlén ◽  
Johan Lindholm
Keyword(s):  
European Union ◽  
Case Law ◽  
Three Dimensions ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Number Of Factors ◽  
The One

AbstractThe case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

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