The need for dialogue between national courts and the European Court of Human Rights

This article intends to analyze in the context of the complexity of the process of internationalization of human rights, the definitions and tensions between cultural universalism and relativism, the essence of human rights discourse, its basic norms and an analysis of the normative dialogues in case decisions involving violations of human rights in international tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights and national courts. The well-established dialogue between courts can bring convergences closer together and remove differences of opinion on human rights protection. A new dynamic can occur through a complementarity of one court with respect to the other, even with the different characteristics between the legal orders.

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Comparative Views on the Right to Vote in International Law

10.1093/oso/9780190697570.003.0018 ◽

2018 ◽

Cited By ~ 1

Author(s):

Shai Dothan

Keyword(s):

Human Rights ◽

International Law ◽

National Courts ◽

European Court ◽

Right To Vote ◽

The Right ◽

Democratic Elections ◽

The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

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Transnational constitutional aspects of the European Court of Human Rights

Global Constitutionalism ◽

10.1017/s2045381719000303 ◽

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.

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

Contemporary Central & East European Law ◽

10.37232/cceel.2019.01 ◽

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.

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European Court of Human Rights and the Bulgarian Judicial System

Vocational Education ◽

10.53656/voc21-61evro ◽

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.

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

German Law Journal ◽

10.1017/glj.2019.33 ◽

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.

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

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/cyl.2018.10 ◽

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.

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

Legal Studies ◽

10.1111/lest.12025 ◽

2014 ◽

Vol 34 (3) ◽

pp. 444-468 ◽

Cited By ~ 5

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.

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The Legal Approach to the Provocation of Bribe as a Variety of Provocation of Crime in Case-law of the European Court of Human Rights

NaUKMA Research Papers Law ◽

10.18523/2617-2607.2020.6.18-27 ◽

2021 ◽

Vol 6 ◽

pp. 18-27

Author(s):

Mykhaylo Buromenskiy ◽

Vitalii Gutnyk

Keyword(s):

Human Rights ◽

National Court ◽

Criminal Activity ◽

Case Law ◽

Unique Type ◽

Covert Action ◽

National Courts ◽

European Court ◽

Protection Of Human Rights ◽

Degree Of Participation

The article gives a legal assessment of “provocation of bribe” as a kind of “provocation of crime”. The authors examine the relevant case-law of the European Court of Human Rights (ECHR) and find that the Court does not consider “provocation of bribe” as a provocation of a unique type of crime, but summarizes the situation of “provocation of crime”, including corruption crimes (including, giving a bribe, offering a bribe, receiving a bribe).The article pays special attention to the fact that the ECHR considers complaints of provocation of bribery in the context of the rights provided for in of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court’s position is that the existence of a proven provocation of a crime deprives a person of a fair trial from the very beginning of the proceedings. The article analyzes the signs of incitement to crime, which are an integral part of provocation of crime.The article emphasizes that the ECHR, when considering relevant cases, refers exclusively to the procedural aspect of bribery provocation, assessing the extent to which the bribery provocation affected the quality of the evidence obtained as a result. In case of considering relevant cases in the national court, the ECHR places the positive obligation to prove the absence of incitement (as a key sign of provocation of a crime) primarily on the prosecution.Based on the analysis of the case-law of the European Court of Human Rights, the authors draw attention to the fact that covert investigative and operational actions must be carried out in a passive way so as not to create any pressure on a person to commit a crime.The case-law of the ECHR also provides an opportunity to determine the limits of national courts’ examination of situations in which a defendant claims to be a victim of a “provocation of crime”. The national court must find out the following: 1) motives of decision-making on a covert action; 2) the degree of participation of the law enforcement agency in the commission of the crime; 3) the nature of any incitement or pressure experienced by the applicant; 4) reliable information about the defendant’s participation in such criminal activity.

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Torture as a ground for inadmissibility of evidence

Economics. Finances. Law ◽

10.37634/efp.2021.4(2).6 ◽

2021 ◽

pp. 28-31

Author(s):

Maryna HRYTSENKO

Keyword(s):

Human Rights ◽

Third Parties ◽

The State ◽

Evidence Based ◽

Legal Systems ◽

Criminal Proceedings ◽

National Courts ◽

European Court ◽

Fundamental Freedoms ◽

Protection Of Human Rights

The European Court of Human Rights, which focuses on the Convention for the Protection of Human Rights and Fundamental Freedoms, points to the importance of the prohibition of torture. The Court has formed its position based on the importance of Article 3 of the Convention and, consequently, the inadmissibility of the evidence obtained in violation of that article by the prosecution. This paper analyzes the practice of the European Court of Human Rights on the implementation of evidence-based activities in national legal systems, and in particular examines the requirements of the Court on the admissibility of evidence-based exercise and activity obtained in the course of work results. The paper demonstrates the ECHR's practice on the issue of torture in obtaining evidence and the consequences of using such a «method», its significance for the practice of national courts and the modernization of the position of courts in relation to the dynamics of this issue. As a result, problematic areas of Ukrainian legislation and justice were identified. The reasons for the use of torture by the authorities and the safeguards introduced by Ukraine to combat the use of such inhuman treatment by the authorities were identified. Changes in the opinion of the European Court of Human Rights on this issue and its significance for Ukraine are analyzed. The possibilities of application of the ECHR for evaluation of admissibility of evidence in criminal proceedings in Ukraine are examined. The patterns characterizing the legal positions of the ECHR in assessing the admissibility of evidence are discovered and singled out. Ukraine should take into account that the responsibilities of the state, in addition to refraining from the use of torture to obtain evidence, include the protection of people from these encroachments by third parties.

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