Politics & International Relations
European Court of Human Rights
The European Court of Human Rights is an international judicial body that oversees the implementation of the European Convention on Human Rights. It hears cases related to human rights violations brought against member states of the Council of Europe. The court aims to ensure that member states uphold the rights and freedoms outlined in the convention.
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12 Key excerpts on "European Court of Human Rights"
eBook - PDF- András Jakab, Arthur Dyevre, Giulio Itzcovich(Authors)
- 2017(Publication Date)
- Cambridge University Press(Publisher)
6 The European Court of Human Rights janneke gerards A Legal, Political, Institutional and Academic Context 1 Legal and Political Culture as Context for Constitutional Reasoning Background The context in which the European Court of Human Rights (ECtHR or Court) has to do its work is different from that of most national con- stitutional courts. Its ‘legal system’ is created by an international treaty, the European Convention of Human Rights (ECHR or Convention) and the ECtHR originally really is an international court, which was intended to function as an ‘early warning’ system on a supranational level when it was drafted in the 1940s. 1 For the first 20 years of its existence, the ECHR-system, which then still consisted of a non-permanent Court sup- ported by a filtering body (the European Commission of Human Rights (EComHR)), had little practical importance. 2 Only a few applications were lodged, and by far the most cases were dealt with by the EComHR, so the Court had little opportunity to develop any argumentative prin- ciples and methods. In the 1970s, however, individuals discovered the potential of protection of their rights through the ECHR system and ever more applications were forwarded to the Court to be decided on their merits. 3 Many of these pertained to principled fundamental rights issues, 1 E. Bates, ‘The Birth of the European Convention on Human Rights – and the European Court of Human Rights’ in J. Christoffersen and M. R. Madsen (eds.) The European Court of Human Rights between Law and Politics (Oxford University Press 2011) 17–42, at 21 and 25. 2 Cf. Bates n 1, at 32 and 33; also S. Greer, ‘What’s Wrong with the European Convention of Human Rights?’, (2008) 30 Human Rights Quarterly 680 at 682; R. Ryssdal, ‘The coming of age of the European Convention on Human Rights’ (1996) 1 European Human Rights Law Review 18 at 18.
eBook - PDFReputation and Judicial Tactics
A Theory of National and International Courts
- Shai Dothan(Author)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
6 International court case study: European Court of Human Rights This book develops a theory to explain the behavior of both national and international courts. This chapter will analyze the behavior of the European Court of Human Rights (ECHR) as the main case study of an international court. The ECHR is different from the classical model of an international court, whose main representative is the International Court of Justice (ICJ). The ICJ deals with disputes between states. In contrast, the ECHR deals mainly with petitions lodged by individuals against states. For that reason, some term the ECHR a “supranational court” to distinguish it from courts such as the ICJ. The ECHR’s jurisdiction also does not cover the entire world; it is a regional court that deals with violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) within the states 212 | that signed the Convention, which together form the Euro- pean Council. Nevertheless, lessons learned from the analy- sis of the ECHR can serve to explain the behavior of many other influential courts. One court whose behavior can be illuminated by lessons learned from the ECHR is the European Court of Justice (ECJ). While the ECJ deals with European Union Law and its procedures are very different from those of the ECHR, it is also a regional court, because its jurisdiction is limited to the European Union. It also built its power gradually and incrementally in a way that resembles the behavior of the ECHR. The ECHR also served as an inspiration for the creation of similar regional human rights regimes and tribunals such as the Inter-American Court of Human Rights and the African Court of Human Rights. These courts have failed so far to acquire the reputation and the usage rates of the ECHR, and they display very different behavior; some of these behaviors will be discussed in the next chapter.
- Vanessa Wilcox(Author)
- 2016(Publication Date)
- Cambridge University Press(Publisher)
PART II The European Court of Human Rights 3 Corporate Rights under the ECHR I Introduction 3/1 On 8 May 1945 the curtains of the stage of the European theatre fell. Germany had unconditionally surrendered to the Allied Powers, and peace was on the agenda for the victorious camp. At this juncture of triumph, ten principal countries of Western Europe met to form an alliance, not against race or nation but tyranny in all forms. 1 On 5 May 1949, the Treaty of London establishing the Council of Europe was signed, and a new European conscience came into being. Europe had taken its first practical step to recreating a regional fabric of peace, safety and freedom. With salutary impatience, the European Convention on Human Rights (ECHR), formally the Convention for the Protection of Human Rights and Fundamental Freedoms, was opened for signature and 3 September 1953 marked its entry into force. Since then, thirty- seven other States have joined the Council of Europe and necessarily, the Convention. Despite the Convention’s post-war origins, in reality, the jurisdiction of the European Court of Human Rights, established in 1959, is a relatively recent one and its key authorities are still compar- atively new: in the first five years of its youth, the Court dealt with no more than two substantive cases and after a further ten years it had only delivered a total of ten judgments on substantive issues. Today, the Court’s judgments number nearly 19,000. In the course of issuing these, the Stras- bourg bench has been confronted with cases that have required it to define and redefine the Convention’s boundaries. This was the case in 2000 in Comingersoll SA v. Portugal, 2 for example, where for the first time in its history, the Court awarded monetary compensation for non-pecuniary loss alleged by a juristic person. Given its growing body of jurisprudence, it is now both legitimate and desirable to analyse the judgments of this Court.
- Filip Dorssemont, Klaus Lörcher, Isabelle Schömann(Authors)
- 2013(Publication Date)
- Hart Publishing(Publisher)
16 The European Convention on Human Rights and the Employment Relation FILIP DORSSEMONT AND KLAUS LÖRCHER 1 THE APPROACH OF THE European Court of Human Rights TOWARDS EMPLOYMENT RELATIONS: INTERNATIONAL, INTER-TEXTUAL AND SOCIAL F UNDAMENTAL SOCIAL RIGHTS are enshrined in specialised international standards. Given the nature of some of these covenants and charters, they can be qualified as genuine human rights. As an international human rights organisation, the Council of Europe (CoE) is committed to the indivisibility and interdependence of human rights. In times which are extremely hazardous for the effective exercise of human rights, the ECtHR is a beacon of light, providing guid-ance and orientation for those plying troubled waters. Not only all European legal and judicial institutions but also all bodies and persons bearing political responsibil-ity are bound to abide by the letter and spirit of European Court of Human Rights (ECtHR) case law as a European floor for the protection for human rights. For more than 50 years, in awareness of the important challenges to the exercise of civil and political rights, the Court has stressed how civil, political and also social rights are intertwined. In certain (sometimes extreme) cases, it has recognised that a number of civil rights also have a social dimension, as it so eloquently stated in Airey v Ireland : Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention.
eBook - PDFConstituting Europe
The European Court of Human Rights in a National, European and Global Context
- Andreas Føllesdal, Birgit Peters, Geir Ulfstein(Authors)
- 2013(Publication Date)
- Cambridge University Press(Publisher)
8 Should the European Union ratify the European Convention on Human Rights? Some remarks on the relations between the European Court of Human Rights and the European Court of Justice leonard f.m. besselink * 1. Juxtaposed human rights orders and a twin peak system This chapter focuses on the relationship between the European Court of Human Rights (ECtHR, the Court) and the European Union (EU) in light of the commitment of the EU to accede to the European Conven- tion on Human Rights (ECHR). 1 It assesses what point there is or should be for the EU to accede. As the process of accession is still underway at the time of writing, it is appropriate to look at what this process, and the complications it has run into so far, tell us about the importance of accession. In this context, it also highlights the role which both the ECtHR case law, and the ECtHR as an independent actor in the process of accession, have played until now. In order to be able to assess what we are heading for, we first need to outline the existing relations between the EU and its European Court of Justice (ECJ) on the one hand and the ECHR and its ECtHR on the other, before the accession. In this regard we need to distinguish between the legal terms of the institutional relationship and the more factual institutional relationship as it takes shape in the contacts between the two courts. One might think that prior to the accession of the EU to the ECHR the relationship between the ECtHR and the ECJ has been one of * This contribution has been written while the author was holder of the chair of European Constitutional Law at the University of Utrecht and Fellow of the Netherlands Institute for Advanced Studies (NIAS), Wassenaar, Netherlands, which have supported him with a generous grant. This text reflects the State of play per June 2012. 1 Article 6(2) Treaty on European Union (TEU): ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
eBook - PDFConstitutional Courts and Democratic Values
A European Perspective
- Víctor Ferreres Comella(Author)
- 2009(Publication Date)
- Yale University Press(Publisher)
Judges on the ECHR (whose number is equal to that of contracting states) are selected by the Parliamentary Assembly of the Council of Europe, which is composed of political representatives appointed by the national parliaments. This assembly votes on a short list of three judicial candidates put forward by each government. 25 The term of office of the judges of the ECHR, moreover, is limited to six years, 26 though judges may be reelected, which is not an ideal arrangement in terms of their institutional independence. (If protocol 14 finally enters into force, judges will enjoy a nonrenewable term of nine years, which is much better.) Concerning the capacity of the democratic branches to respond to the ECHR and generate a dialogue on the interpretation of human rights, things get more complicated. It is very difficult for the contracting states to respond collectively to the decisions of the ECHR. Whereas in the context of the European Community, it is very hard, but not impossible, to amend the treaties (and it is relatively easy to modify secondary legislation), it is impossible, in practice, to amend the European Convention on Human Rights, which requires the unanimous consent of the contracting states (there are forty-seven of them as of this writing). It is therefore crucial that mechanisms that can serve as a dialogic constraint on the ECHR be available at the domestic level. The convention establishes two mechanisms that a contracting state can employ to make a national law prevail over ECHR case law, but neither mechanism is useful for channeling the kind of dialogue we are consider-ing here. Article 15 of the convention allows states to derogate from certain rights “in time of war or other public emergency threatening the life of the nation.” When the national authorities resort to such derogation, however, they are not disagreeing with the ECHR, at least not necessarily. They are simply suspending the operation of a right during the emergency.
eBook - PDFLawyering Europe
European Law as a Transnational Social Field
- Antoine Vauchez, Bruno de Witte, Antoine Vauchez, Bruno de Witte(Authors)
- 2013(Publication Date)
- Hart Publishing(Publisher)
It was necessary in order to overcome the hesitations and reluctances of governments’. 120 Stéphanie Hennette-Vauchez to build a legitimacy of their own. This is the way actors of the system testify about the first years of the ECHR system. In 1965, Henri Rolin, then president of the European Court of Human Rights, was wondering whether it actually had a future 13 given the extremely low rate of cases that were being deferred. To him, if the Court had only ruled in two cases six years after its entry into function, this was to be understood as a consequence of the fact that governments thought it preferable to engage into friendly settlements – a procedure politically less costly than a judicial one (be it an international one) in which the state would appear as the ‘accused’. For all these reasons (and more), it can well be argued that nothing, in 1950, allowed the thought that the ECHR’s future would be anything close to the one it has since proved to be. Applicable to an odd-800 million persons throughout no less than 47 states, equipped with a permanent court who delivered its 13,000th decision not long ago and has authored throughout the years a teeming body of case law and crafted specific modes of reasoning (such as ‘autonomous concepts’, ‘national margin of appreciation’, ‘evolutive interpretation’) that even the national press no longer ignores in many countries, the ECHR has become the emblem (the model?) of international human rights law. It is more binding than the UDHR which was unable to overcome the tension between its proclaimed universality and empirical reality, more legitimate than the Inter-American Convention which remains weakened by the enduring refusal of the USA to ratify it, and more generous than many sectoral protection mechanisms such as that of workers within the International Labour Organisation. Human rights law does indeed appear to be a European success and achievement.
eBook - PDFInternational Law and Dispute Settlement
New Problems and Techniques
- Duncan French, Matthew Saul, Nigel D White, Duncan French, Matthew Saul, Nigel D White(Authors)
- 2010(Publication Date)
- Hart Publishing(Publisher)
See T Ahmed and I Butler, ‘The European Union and Human Rights: An International Law Perspective’ (2006) 17(4) European Journal of International Law, 771–801 and the references therein. 348 Tawhida Ahmed In reality, complications in applying the above rationale have arisen for two main reasons. First, the Council of Europe and the EU are separate international entities. The EU has not acceded to the ECHR and is not legally bound to comply with its standards of protection and the ECtHR consequently has no authority to review challenges against the EU per se. Since the review of Member States’ EU-related actions may place Member States in the difficult position of either applying EU law or continuing to breach ECHR rules, the ECtHR has been in a political dilemma as to how to implement ECHR standards in the cases of such review. Secondly, the EU has developed an internal framework for safeguarding human rights within the EU. Within that framework, the EU declares itself to strive for compatibility with ECHR standards of protection, though it is under no legal obligation to faithfully apply those standards. The existence of this parallel commitment to Convention rights, whilst an active demonstra-tion of the value attached to the human rights of individuals in Europe, again presents political complications which can result in reducing the effectiveness of the ECHR protection available to individuals. This is a combined consequence of: a) the actual or potential conflicts which arise from overlaps and particularly the danger that the EU provides a lower level of human rights protection; and b) the absence of a presupposed hierarchical relationship between the two organisations. These compli-cations have direct implications for the quality of the rights granted to individuals and ultimately therefore for the upholding of the values of the international human rights system.
eBook - PDF- Hege Elisabeth Kjos, Amrei Müller(Authors)
- 2017(Publication Date)
- Cambridge University Press(Publisher)
6 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR) (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953. 7 SAS v. France, supra note 5, paras. 41–52. 8 Vinter and Others v. the United Kingdom, supra note 4, paras. 69–72 and 117. Non-Party Domestic Courts, CoE Bodies and the ECtHR 413 4 1 3 It may be asked whether the Court accords similar weight to the deci- sions of domestic courts from all CoE member states when evaluating whether there is a European trend or consensus. The practical importance of this question should not be exaggerated. As mentioned earlier, it is – from a Convention perspective – the general legal situation in a country that matters, not whether it is based on legislation or case law. Having said that, it should be emphasised that the CoE is based on the principle of equality of states, and the Court does not take into account the size or geo- graphical location of a certain country. In my view, it is the substance and persuasive force of a domestic decision which determines its impact, not the jurisdiction within which it has been rendered. The impact of a judg- ment from a European state will depend on a concrete evaluation. 14.4 Domestic Court Decisions Outside the CoE The situation is different with respect to the ECtHR’s references to deci- sions of domestic courts in states that are not members of the CoE. They are mentioned more frequently than domestic decisions of CoE member states’ courts that are not direct parties to the case, and this is not a new trend. 9 Already the former Commission used such comparative material. In X v. the United Kingdom (1980), 10 a case concerning the question of abortion, the Commission referred to the US Supreme Court’s ruling in Roe v. Wade 11 in its reasoning.
- Paul Gragl(Author)
- 2013(Publication Date)
- Hart Publishing(Publisher)
8 External Review by Strasbourg: A Hierarchy of Courts? I. EXTERNAL REVIEW VS AUTONOMY: THE LEGAL ISSUE SITUATED O N THE BASIS of Article 6 (2) of the Treaty on European Union (TEU), this chapter examines which legal action by the European Union may be challenged before the Strasbourg Court. 1 It is the primary purpose and objective of the European Union’s accession to the Convention to subject the Union and its institutions to the judicial review of an external court, namely the European Court of Human Rights (ECtHR) and its protection regime. The most desirable consequence of this step is to close the existing lacunae in the European system of human rights protection and thus remedy the ECtHR’s lack of jurisdiction ratione personae over the EU. 2 After accession, the EU will be bound by the provisions enshrined in the Convention and individuals will accordingly be entitled to file applications for infringements of the Convention directly against the EU and its institutions, and not against the Member States for ‘merely’ implementing Union law. Such infringements of the Convention by EU law can be found in virtually every legal act of the Union—in primary law such as the Treaties themselves; in all legal acts of secondary law under Article 288 of the Treaty on the Functioning of the European Union (TFEU); in executive actions or omissions; and in the decisions of the Union courts. 3 As aforementioned in previous parts of this book, it has repeatedly been assured that, firstly, the ECtHR ‘could not be regarded as a superior Court but rather as a specialised Court exercising external control over the international law obligations of the Union resulting from the accession to the ECHR’; 4 secondly, 1 See also Jean-Paul Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48 Common Market Law Review 995, 1002f.
eBook - PDFThe UK and European Human Rights
A Strained Relationship?
- Katja S Ziegler, Elizabeth Wicks, Loveday Hodson, Katja S Ziegler, Elizabeth Wicks, Loveday Hodson(Authors)
- 2015(Publication Date)
- Hart Publishing(Publisher)
However, as Lady Justice Arden has correctly stated, we tend to react to certain controversial cases at the European level on an unreflective, ad hoc basis, instead of thinking in a long-term way about a thriving and beneficial relationship in its entirety. 164 One should therefore not jump to any conclusions and not forget another view: that the UK became part of the European system of human rights protection at its inception and that EU accession to the ECHR is not about fur-ther restricting Member State competences, but about closing the last gaps in the 159 L Lixinski, ‘Taming the Fragmentation Monster? International Constitutionalism, “Pluralism Lite” and the Common Territory of the Two European Legal Orders’ in Kosta, Skoutaris and Tzevelekos (n 25) 232. 160 L Zucca, ‘Monism and Fundamental Rights’ in Dickson and Eleftheriadis (n 154) 349 and 351. 161 N MacCormick, Questioning Sovereignty (Oxford, Oxford University Press, 1999) 116–17. 162 N MacCormick, ‘Risking Constitutional Collision in Europe?’ (1998) 18 Oxford Journal of Legal Studies 517, 530. 163 Hans Kelsen, Pure Theory of Law , 2nd edn (Berkeley , University of California Press, 1967) 328–44. 164 Arden (n 87) 4. Of Tangled and Truthful Hierarchies 297 already close-meshed web of European human rights law. In fact, if sceptics fear the subversion of the British constitutional order by the EU and the ECHR, they should accept that this revolution already happened when the UK became a member of these two supranational systems. As this chapter has shown, accession does not entail any significant risks for the British constitution: EU accession to the ECHR does not add another layer of human rights protection, nor does it further complicate the three-dimensional web of fun-damental rights regimes.
eBook - PDFThe Legitimacy of Family Rights in Strasbourg Case Law
'Living Instrument' or Extinguished Sovereignty?
- Carmen Draghici(Author)
- 2017(Publication Date)
- Hart Publishing(Publisher)
The recogni-tion of State discretion in the concrete implementation of abstract moral values is, in fact, not incompatible with their universality. Sweeney thus proposed ‘a view of the interaction of national and international human rights protection based upon institutional subsidiarity and a form of “ethical decentralisation”’. 124 Costa 24 Introduction 125 Costa (n 83) 180. As the Preamble suggests, the system was premised on ‘a common understanding and observance of the human rights’, ‘a common heritage of political traditions, ideals, freedom and the rule of law’; moreover, art 1 of the Statute of the Council of Europe phrases the objectives of the organi-sation in terms of ‘safeguarding and realising the ideals and principles which are their common heritage’. 126 Mahoney, ‘Marvellous Richness of Diversity’ (n 103) 1. See further ibid: ‘No one would suggest that [the European Convention] institutes a system of detailed regulation from Strasbourg in all areas of activity covered by the guaranteed rights.’ 127 One of the major constitutional critiques in the UK, generated by the Strasbourg condemnation of disenfranchisement legislation in the UK, was whether the ECtHR has ‘assumed jurisdiction over matters in respect of which National governments have not relinquished sovereignty’. See S Briant, ‘Dialogue, Diplomacy and Defiance: Prisoners’ Voting Rights at Home and in Strasbourg’ (2011) 3 European Human Rights Law Review 243. 128 Kemmache v France (No 3) , App No 17621/91, ECtHR judgment of 24 November 1994, para 44.
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