scholarly journals The international legal basis for implementation of judgments of the european court of human rights into the domestic legal system

2021 ◽  
pp. 31-35
Author(s):  
Guliam Umid
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Legal Systems ◽  
Legal Certainty ◽  
Progressive Development ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
The Impact

An analysis of the international legal bases of implementation of decisions of the European Court of Human Rights to the national legislations of the member states of the Council of Europe is carried out. Such implementation takes various forms, and in general there is no single implementation mechanism. At the same time, the importance of implementing decisions of the European Court of Human Rights lies in the state's fulfillment of its obligations both to the world community of states and to its own citizens. Forms and methods that ensure the progressive development of national law, taking into account the practice of international courts, are considered. The synthetic research method determines the impact of ECtHR decisions on the structure of national law, which stimulates the transformation of its entire branches. It is demonstrated, how the ECtHR promotes the formation of progressive legal institutions in legal systems, exerting organizational and civilizational influence on the legal systems of states. It is emphasized, that the principle of legal certainty, by which the international court assesses vague and insufficiently clear provisions of national law, is fundamental for the implementation of the case law of the ECtHR into national laws. With this influence, the ECtHR determines the nature of lawmaking and law enforcement in a country. As a result, it is concluded, that the most effective mechanism for implementing the principle of legal certainty in a state is the adoption of general measures, contained in the pilot decisions of the ECtHR. The second important mechanism is the application of the rules of law by national courts, taking into account the case law of the ECtHR, which ensures the interpretation of human rights rules in a way that is most acceptable to the national legal system

The Pan-European General Principles of Good Administration in the Italian Legal System

2020 ◽  
pp. 182-209
Author(s):  
Marco Macchia ◽  
Claudia Figliolia
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Administrative Law ◽  
European Court ◽  
System P ◽  
Low Degree ◽  
Court Proceedings ◽  
The Impact ◽  
Constitutional Jurisprudence

This chapter discusses the impact of the pan-European principles of good administration on Italian administrative law. The chapter presents the main finding that the Italian legal system is generally in line with these principles. The case law of the European Court of Human Rights has played a particularly strong role in national administrative law (especially in the context of administrative sanctioning and lengthy court proceedings). At the same time, some limitations to full reception of the said principles remain, the most notable of them being the resistance of constitutional jurisprudence to give ‘generalized’ execution to the pan-European principles and the low degree of recognition of the importance of the Council of Europe’s recommendations and conventions (other than the ECHR) for the development of these principles in national administrative law. The chapter concludes by stressing the (sometimes) contradictory nature of Italy’s acknowledgement of the pan-European scope of these principles.

The Innocuous Impact of Pan-European General Principles of Good Administration on Hungarian Law and Legal Practice

2020 ◽  
pp. 449-477
Author(s):  
Petra Lea Láncos
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Soft Law ◽  
Full Potential ◽  
Council Of Europe ◽  
Legislation And Jurisprudence ◽  
European Court ◽  
The Impact

This chapter discusses the influence of the pan-European principles of good administration in the Hungarian legal system. It discloses that while the impact and role of these pan-European principles, in particular that of the case law of the European Court of Human Rights, are growing in Hungarian legislation and jurisprudence, clear traces of them are still difficult to discern. It also finds that, despite some influence stemming from the Council of Europe (CoE) in the codification concepts underlying recent procedural reforms, the full potential to that effect is far from being realized. In particular, reliance on soft law instruments of the CoE remains problematic, in part due to legal formalism inherited from the country’s socialist past.

scholarly journals Significance of the case of Urgenda for the development of climate litigations in Europe

2021 ◽  
pp. 249-265
Author(s):  
Ljubomir Tintor
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
International Law ◽  
Case Law ◽  
State Responsibility ◽  
National Courts ◽  
European Court ◽  
Combat Climate Change ◽  
The Impact ◽  
Harmful Effects

The article comprehensively analyses the case of Urgenda v. the Netherlands as the first successful climate litigation in Europe. The article analyses the arguments on which the Dutch courts established state responsibility for human rights violations caused by the failure of the state in the implementation of policies to combat climate change. The significance of this case is pointed out not only for Dutch, but also for international law. The second part of the article will show how the Urgenda case affected climate litigation that began to appear before national courts across Europe. Through a comparative analysis of cases, it will be pointed out that there is uneven case law in climate litigation before national courts. It will be seen how the Urgenda case had an impact on the initiation of climate disputes and before the European Court of Human Rights. Particular attention is paid to the issue of the connection between the impact of climate change and the torture caused by the harmful effects of global warming, which was initiated before the European Court of Human Rights in Strasbourg. At the end of the article, the perspective of climate litigation is considered.

Transnational constitutional aspects of the European Court of Human Rights

2021 ◽  
Vol 10 (1) ◽  
pp. 151-174
Author(s):  
GEIR ULFSTEIN
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Pluralism ◽  
Legal Order ◽  
Not Given ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
International Legal Order

AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

Domestic Investigation and Prosecution of Atrocities Committed during Military Operations: The Impact of Judgments of the European Court of Human Rights

2013 ◽  
Vol 46 (3) ◽  
pp. 369-404
Author(s):  
Silvia Borelli
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Full Potential ◽  
Remedial Measures ◽  
Legal Systems ◽  
Military Operations ◽  
Council Of Europe ◽  
Proactive Approach ◽  
European Court ◽  
The Impact

The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.

Religious Pluralism and State- Centric Legal Spaces in Europe

2021 ◽  
Vol 18 (1) ◽  
pp. 33-54
Author(s):  
Kyriaki Topidi
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Religious Pluralism ◽  
Legal Pluralism ◽  
Case Law ◽  
Legal Systems ◽  
European Court ◽  
Starting Point

Multiculturalism is continuously and relentlessly put to the test in the so- called West. The question as to whether religious or custom- based legal orders can or should be tolerated by liberal and democratic states is, however, by no means a new challenge. The present article uses as its starting point the case of religious legal pluralism in Greece, as exposed in recent European Court of Human Rights (ECtHR) case- law, in an attempt to explore the gaps and implications in the officially limited use of sharia in Western legal systems. More specifically, the discussion is linked to the findings of the ECtHR on the occasion of the recent Molla Sali v. Greece case to highlight and question how sharia has been evolving in the European legal landscape.

scholarly journals Public Morality as a Legitimate Aim to Limit Rights and Freedoms in the National and International Legal Order

2019 ◽  
pp. 10-20
Author(s):  
Anna Młynarska-Sobaczewska ◽  
Katarzyna Kubuj ◽  
Aleksandra Mężykowska
Keyword(s):  
Human Rights ◽  
Moral Judgments ◽  
Moral Issues ◽  
National Courts ◽  
European Court ◽  
Starting Point ◽  
International Legal Order ◽  
Protection Of Human Rights ◽  
Human Rights Standards ◽  
The Impact

Domestic legislation and international instruments designed for the protection of human rights provide for general clauses allowing limitations of rights and freedoms, e.g. public morals. A preliminary analysis of the case-law leads to the observation that both national courts and the European Court of Human Rights, when dealing with cases concerning sensitive moral issues, introduce varied argumentation methods allowing them to avoid making direct moral judgments and relying on the legitimate aim of protecting morality. In the article the Authors analyse selected judicial rulings in which moral issues may have played an important role. The scrutiny is done in order to identify and briefly discuss some examples of ways of argumentation used in the area under discussion by domestic and international courts. The identification of the courts’ methods of reasoning enables us in turn to make a preliminary assessment of the real role that the morality plays in the interpretation of human rights standards. It also constitutes a starting point for further consideration of the impact of ideological and cultural connotations on moral judgments, and on the establishment of a common moral standard to be applied in cases in which restriction on human rights and freedoms are considered.

The Impact of the Pan-European General Principles of Good Administration on Swiss Law

2020 ◽  
pp. 353-374
Author(s):  
Nadja Braun Binder ◽  
Ardita Driza Maurer
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Swiss Law ◽  
Written Law ◽  
The Impact

This chapter is dedicated to exploring the impact on Swiss administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter claims that the standards stemming from the European Convention on Human Rights and the case law of the European Court of Human Rights have been adopted in an exemplary way by Swiss authorities. The influence was especially strong in the 1980s and 1990s. The same cannot be said regarding other documents of the CoE, whose impact remains disparate because many aspects of the pan-European general principles of good administration were already part of the national written law. The chapter concludes that despite the exemplary integration of CoE instruments heated debates on the content of these instruments are not excluded from Switzerland.

5. Case law

Legal Skills ◽  
2019 ◽  
pp. 85-103
Author(s):  
Emily Finch ◽  
Stefan Fafinski
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Case Law ◽  
Court System ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Impact

Case law can be broken down into common law, equity, and custom. This chapter begins with a discussion of common law and equity, including a brief history on how these sources came into being. It then turns to custom as a further source of law. It also provides an overview of the court system to illustrate how the various courts in the system link together in a hierarchy. It concludes with a discussion of the European Court of Human Rights and the impact of the Human Rights Act 1998 on case law.

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