The Principle of Legality and Administrative Punishment under the ECHR: A Fused Protection

2021 ◽  
Vol 13 (4) ◽  
pp. 33-51
Author(s):  
Agno Andrijauskaito
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
European Court ◽  
Administrative Punishment ◽  
Principle Of Legality ◽  
The Relationship

The principle of legality permeates the entire legal system based on the rule of law. It is especially well-pronounced in criminal law. However, what are its content, scope and implications when it comes to prescribing and punishing for offences which are supposedly less reprehensible, namely – administrative offences? How precisely should they or the sanctions that they stipulate be defined in legal provisions? Furthermore, is there any room for interpretation while imposing sanctions by public bodies? This article seeks to delve into these vexed questions by examining the relationship between the principle of legality and administrative punishment within the framework of the Council of Europe ('CoE') and the implications stemming therefrom. This will be done by dissecting the rationale and notion of this principle in the normative sources of the CoE with a special emphasis on Article 7 of the European Convention on Human Rights and its (autonomous) application in the case law of the European Court of Human Rights as well as by identifying the shortcomings of the current perception of the legality principle in the context of administrative punishment.

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.

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.

scholarly journals Las cláusulas de restricción en el Convenio Europeo de Derechos Humanos

2021 ◽  
pp. 469
Author(s):  
Lara Redondo Saceda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
Derechos Humanos ◽  
European Court ◽  
El Sistema ◽  
The Impact

El presente trabajo pretende analizar el sistema de restricciones al ejercicio de los derechos previsto en los artículos 8 a 11 del Convenio Europeo de Derechos Humanos. Así, el objetivo principal es reflexionar sobre la incidencia de estas cláusulas de restricción, su desarrollo jurisprudencial por parte del Tribunal Europeo de Derechos Humanos y su significado en la construcción del sistema de derechos humanos del Consejo de Europa.This paper is intended to analyse the system of restrictions on the exercise of rights provided by articles 8 to 11 of the European Convention on Human Rights. Thus, the principal aim is reflecting on the impact of these restriction clauses, their case-law development by the European Court of Human Rights and their meaning on the construction of the Council of Europe Human Rights System.

scholarly journals Protection of Whistleblowers by the European Union, the Council of Europe, and the European Court of Human Rights

2021 ◽  
Vol 1 ◽  
pp. 25-36
Author(s):  
Sára Kiššová
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Financial Interests ◽  
Internal Sources ◽  
Illegal Activities

Whistleblower protection in the European Union is undergoing significant developments. The new Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting breaches of Union law sets a minimum standard for the protection of whistleblowers. It is awaiting implementation in Member States' national law by December 2021. However, a certain level of protection is also guaranteed by the European Court of Human Rights case law principles. Reports of illegal activities provided from close internal sources can strengthen the protection of the EU's financial interests. Adequate protection is needed to prevent retaliation against whistleblowers. As the deadline for transposing this directive approaches, the article aims to analyse the Directive 2019/1973 and compare it with the protection guaranteed by Article 10 of the European Convention on Human Rights.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

Present and Future Relations between the ECJ and the ECtHR

ICL Journal ◽  
2013 ◽  
Vol 7 (3) ◽  
Author(s):  
Rosmarie Doblhoff-Dier ◽  
Sandra Kusmierczyk
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
European Union Law ◽  
The Road ◽  
European Court ◽  
On The Road ◽  
The Relationship

AbstractBy acceding to the European Convention on Human Rights (ECHR), the EU’s role as supranational player in the complex human rights architecture of Europe will be finally recognized. On 5 April 2013, the negotiators of the accession procedure of the European Union to the ECHR agreed on a package of draft accession instruments. Constituting a mile­stone on the road to accession, the now revised Accession Agreement still leaves vast room for discussion. By critically scrutinizing some of its modalities, this article will evaluate its impact on the human rights jurisdiction of the European Court of Justice (ECJ) and the Eu­ropean Court of Human Rights (ECtHR) and the relationship between both courts. To this end, it will address the somewhat disproportionate involvement of the European Union in the future jurisdiction of the ECtHR and in the decision making of the Council of Europe in matters linked to the ECHR. Furthermore, it will focus on the compatibility of the Draft Agree­ment with the principle of autonomous interpretation of European Union Law: a highly rel­evant discussion for the ECJ’s future Opinion under Article 218 (11) TFEU on the compatibil­ity of the finalized draft agreement with the Treaties - the next hurdle for accession.

The Relationship Between the EU Charter of Fundamental Rights and the European Convention on Human Rights: an Originalist Analysis

2015 ◽  
Vol 11 (3) ◽  
pp. 482-511
Author(s):  
Stephen Brittain
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
The Relationship

European Convention on Human Rights and the European Union Charter of Fundamental Rights: relationship – Teleological method of interpretation of the European Court of Justice: meaning, justifications, and criticisms – Originalist method of interpretation: meaning, justifications, and criticisms – Original meaning of Article 52(3) of the Charter: text, drafting history, case law – Conclusion: case law of European Court of Human Rights not strictly binding on the Court of Justice of the European Union.

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 0 (0) ◽  
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.

scholarly journals Enforcing the Judgments of the ECtHR in Russia in Light of the Amendments to the Law on the Constitutional Court

2016 ◽  
Vol 24 ◽  
pp. 14 ◽  
Author(s):  
Kerttu Mäger
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Council Of Europe ◽  
European Court ◽  
Domestic Legislation ◽  
Russian Constitution ◽  
Cherry Picking ◽  
The Law

The paper was written to analyse the enforceability of the judgements of the European Court of Human Rights in Russia, particularly in light of recent amendments to the Law on the Constitutional Court and relevant case law of the Constitutional Court of Russia. Article 46 of the European Convention on Human Rights, obliging member states to execute the judgements of the European Court of Human Rights, does not leave room for ‘cherry-picking’ in enforcing the judgements. However, the Constitutional Court has suggested that Russian authorities should indeed engage in cherry-picking and may refuse to enforce judgements that are not in accordance with the Russian Constitution as interpreted by the Constitutional Court. In December 2015, the Russian parliament amended the Law on the Constitutional Court so as to empower said court to declare judgements of the European Court of Human Rights unenforceable when implementation would be in conflict with the Constitution of Russia. The paper discusses the background of these developments and alternatives for overcoming the conflict between domestic legislation and the instruments of the Council of Europe.

Sources and Content of the Pan-European General Principles of Good Administration

2020 ◽  
pp. 19-54
Author(s):  
Ulrich Stelkens ◽  
Agnė Andrijauskaitė
Keyword(s):  
Human Rights ◽  
Data Protection ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Soft Law ◽  
Council Of Europe ◽  
European Court ◽  
Relevant Case

This chapter examines the sources of the pan-European principles of good administration developed by the Council of Europe (CoE). It maps the degree of concretization these principles have reached, and how far they have spread concerning the classical and modern topics of administrative law. It scrutinizes the Statute of the CoE, the European Convention on Human Rights, and the (relevant) case law of the European Court of Human Rights, other CoE conventions (such as the CoE Convention on Data Protection, the Convention on Access to Official Documents, and the European Charter of Local Self Government), and the recommendations and other soft law on good administration of the Committee of Ministers and other institutions of the CoE. The chapter concludes that the principles deriving from these sources should not be considered as a loose bundle of various rules in administrative matters but instead form a ‘coherent whole’.

Sign in / Sign up

Export Citation Format

Share Document