Parliaments and the European Court of Human Rights

2017

European Convention on Human Rights Law Review, 2020

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.

2012

Human rights are considered one of the big thoughts of the early twenty-first century. This book presents in an authoritative and readable form the variety of platforms on which human rights law is practised today, reflecting also on the dynamic inter-relationships that exist between these various levels. The collection has a critical edge. The chapters engage with how human rights law has developed in its various subfields, what (if anything) has been achieved and at what cost, in terms of expected or unexpected side-effects. The authors pass judgment about the consistency, efficacy and success of human rights law (set against the standards of the field itself or other external goals). Written by world-class academics, this Companion will be essential reading for students and scholars of human rights law. Conor Gearty is Professor of Human Rights Law at the London School of Economics and Political Science. He is a specialist in European and UK human rights law, as well as in terrorism law and civil liberties, on each of which subjects he has written extensively. He is also a barrister and a founding member of Matrix Chambers from where he continues to practise. Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities. In his many books, and the talks he has given around the world, he has developed a position on human rights that seeks to retain the radical and emancipatory power of the term and practice without however accepting the arid and self-interested arguments of the powerful (of both the scholarly and political variety).

Krytyka Prawa, 2022

The article is devoted to the study of the correct application of the evaluative con cepts contained in the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms. Attention is drawn to certain difficulties in the appli cation of the evaluative norms in the Convention: despite their objective necessity and usefulness, they create a room for the law enforcement entity's own discretion up to subjectivism in resolving specific cases; they serve as an objective obstacle to the unification of the case law of the ECtHR and this creates preconditions for unequal implementation of ECtHR judgments in the national legal order; they cause the risk of errors in the application of the provisions of the Convention by the competent authorities of the Contracting States. It is established that the application of legal norms containing evaluative concepts is challenging not only owing to the specific properties of the evaluative concepts themselves, but also due to the peculiarities of adjudication by the ECtHR when applying the evaluative norms. The relevant case law of the ECtHR as well as examples of national legislation are analysed in support of these theoretical conclusions. Since the lack of uniform application of the evalua tive norms of the Convention causes divergent use of the ECtHR's judgments in the domestic judicial system, it is advised to follow a number of rules for reasoning of decisions by the domestic court. These rules will serve as a certain guarantee against ambiguous implementa tion of ECtHR judgments at the national level.

2019

2015

Adopted on October 2, 2013 in Strasbourg, Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms enables courts and tribunals of the states-parties to the Convention to request the European Court of Human Rights. The aim of this paper is to present the changes which the Protocol No. 16 introduces into the Strasbourg human rights protection system and to identify some consequences Protocol No. 16 can have for national legal systems.

1994

Added to that, there is an apparent paradox in the picture that first comes out of a listing of the case books as it may make us wonder whether it is not obvious at this point already that there is one European "common law" of human rights, created by the European Court of Human Rights, shared by all the member states of the Council of Europe and which is more or less contained in all of these primary sources. But even these sources alone disclose that this is an extremely simplified depiction. The closer we look at the case law, the more clearly its complexities stand out and a simple answer becomes more and more elusive. This understanding is reinforced by how the ECHR is applied (or not) in domestic law. The scrutiny of the texts of the relevant cases will proceed, therefore, by looking at the appropriate domestic case law of the United Kingdom, France and Italy. Although the investigation will discuss the position of the ECHR in relation to municipal law, the main concern will be to establish the ability of the ECHR to influence domestic legal interpretation. In addition, there will also be a study of the underlying reasoning in the case law of Strasbourg and a very brief inquiry into the discussions that led to the creation of the Council of Europe and particularly, the debates in the run-up to the ECHR.19 the Library of the Council of Europe in Strasbourg, keeps a comprehensive catalogue on published material on European human rights organised according to the articles of the ECHR and its Protocols.-20-A metaphor for the operation of human rights law in Europe Even where the population is much like that of Britain, a transplanted British institution will probably grow in a different manner because the soil is different22 To the mass of Americans resident in the island [of Puerto Rico]and this is particularly true of the lawyersthe entire system of law and government, of domestic and public institutions, was bad simply because it was different from our own ... The only way to make Americans of the Porto Ricans, it was argued, was to give them, without delay, the system of law of one of our States.24 37Sir Humphrey Waldock," The Effectiveness of the System set up by the European Convention on Human Rights", (1980) 1 HRLJ 1,11. 38Sir Humphrey Waldock, op. cit., 12.

1993

This puhlication sho uld he cited as AEL Vo l. !I Book 2 Cover design: Franc~;:sco Casses~;:

Journal of Law Policy and Globalization, 2015

Europe has succeeded in principle, in moving from the stage of proclamation of inalienable Human Rights-a gesture of political intent, to that of their effective implementation. Despite a great beginning when the European Convention for the Protection of Human Rights and Fundamental Freedoms (E.C.H.R) was signed in 1956, the path to effective protection of Human Rights has been long and difficult even in Europe. The European Court of Human Rights established in 1959 was the first Independent International Tribunal dedicated to the protection of Human Rights. This article examines the jurisprudence of the European Court of Human Right as a panacea for an effective enforcement of the human rights regime and concludes that the European Courts of Human Rights jurisprudence reaches a good equilibrium on many matters, while on a few others, in the eyes of the present commentator, it could still be improved. Similarly, the court rather than divesting itself of its specific mistake in order to become a general court of cassation of the Council of Europe member states, have instead engaged in a middle way, assigning to itself the role of an essential milestone in the protection and constant development of that branch of law called 'Human Rights' and which embodies in some sort, worded general propositions and the essential political and legal commitments of the democratic state of Europe.

The European Convention on Human Rights-A living instrument Contents The European Convention on Human Rights The European Court of Human Rights Case-law Impact of the Convention The Convention, a modern instrument Reforms of the Convention system Appendix 1: The Convention in brief Appendix 2: Signatory States of the Convention for the Protection of Human Rights and Fundamental Freedoms Appendix 3: Key dates Appendix 4: The Protocols to the Convention Appendix 5: Chart of signatures and ratifications of the European Convention on Human Rights (Treaty No. 005) French edition: La Convention européenne des droits de l'homme-Un instrument vivant This document was prepared by the Court's Public Relations Unit. It is designed to set out in simplified form the rights contained in the European Convention on Human Rights and is intended for purely educational purposes. The legally authoritative documents are the official versions of the Convention in French and in English. All rights reserved. No part of this publication may be translated, reproduced or transmitted, in any form or by any means, electronic (CD-ROM, Internet, etc) or mechanical, including photocopying, recording or any information storage or retrieval system, without prior permission in writing from the Public Relations Unit-Registry of the ECHR.

University of Cambridge Working Paper, 2012

This article discusses the current jurisprudence from UK Courts and Tribunals under section 2 of the Human Rights Act 1998, particularly the duty to take into account any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights or its associated bodies when determining a question concerning a Convention Right. It argues that the current practice of domestic Judges of deferring to the views of the Strasbourg Court and following its approach even when considering it manifestly incorrect is unsatisfactory and ought to be replaced by a more flexible approach which recognises the original intent of Parliament to create a legislative instrument to be understood within the traditions of the British State.

EU and Comparative Law Issues and Challenges Series - ECLIC, 2020

The aim of this paper is not only to analyze the case-law of ECtHR and its development of the principle nullum crimen, nulla poena sine lege, but also to determine and draw attention to some unresolved issues, ambiguities, and inconsistencies regarding the Article 7. Special attention will be paid to the distinction that ECtHR draws between the imposition of a penalty and its enforcement, where the latter is not considered as part of the “punishment” within the meaning of Article 7, leading to the conclusion that the prohibition of retroactivity has no effect on it. The paper will analyze ECtHR’s reasoning related to this matter and test the opposite thesis that the ex post facto prohibition should be applied on the enforcement of the penalty in the same manner as it is applied on its imposition. The influence of the EU Charter of Fundamental Rights on the development of the prohibition of retroactivity will also be emphasized. Furthermore, in the case of Scoppola v. Italy (No. 2), ECtHR has specified that the rules on retroactivity do not apply to procedural laws, which immediate application is in conformity with the tempus regit actum principle. However, as it will be argued, there are some examples that may show how their retroactive application increases the likelihood of the conviction and therefore puts the defendant in a detrimental position, breaching the principle of legal certainty. In the light of that, it will be discussed whether the rules of criminal procedure should be given retroactive effect, particularly when they benefit the accused.