When international case-law meets national law

2019 ◽  
Vol 8 (1) ◽  
pp. 12-38 ◽  
Author(s):  
Katia Peruzzo
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Loan Words ◽  
European Court ◽  
International Court ◽  
Translation Techniques ◽  
Official Languages ◽  
Set Up ◽  
Legal Concepts

Abstract The European Court of Human Rights (ECtHR) is an international court set up in 1959 with the aim of ruling on applications alleging violations of the rights enshrined in the European Convention on Human Rights. The Court’s official languages are English and French, which are also used for delivering and publishing its judgments. In order to decide on the single cases, the ECtHR needs to discuss and recall national and international legislation. This leaves “traces” in the Court’s judgments. The focus of this paper is on one possible type of such traces, i.e. loan words referring to Italian legal concepts and institutions. The paper presents a case study conducted on a corpus of ECtHR judgments published in English. The aims are to propose a methodology for the semi-automatic extraction of loan words and to analyse them in the light of translation techniques.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

Dialogue and the Implementation of the European Court of Human Rights' Judgments

2016 ◽  
Vol 34 (4) ◽  
pp. 340-363 ◽  
Author(s):  
Elisabeth Lambert Abdelgawad
Keyword(s):  
Human Rights ◽  
Good Governance ◽  
European Convention ◽  
Laboratory Model ◽  
Constructive Dialogue ◽  
European Court ◽  
Large Panel ◽  
Speed Up ◽  
Set Up ◽  
The Impact

Due to the intergovernmental and confidential regime set up by the European Convention on Human Rights in view of supervising the execution of the judgments of the European Court of Human Rights, this field was for many years little suited to dialogue. However, a culture of dialogue has gradually emerged at the European and national levels in order to offer more transparency and legitimacy to the system; the ambitious gamble was that it would speed up and improve the compliance with the judgments of the Court. The current picture still seems to be diversified, with more bilateral and expert dialogue focused on the most serious cases at European level. Meanwhile, a strategy for a more open and constructive dialogue with a very large panel of actors seems to be promoted in some countries. Has dialogue provided a relevant laboratory model to improve good governance and compliance with the judgments of the Court? This article reviews the impact of this new practice. The author concludes that there remains large room for improvement.

scholarly journals Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

2017 ◽  
Vol 1 (3) ◽  
pp. 168-173
Author(s):  
Tamara Gerasimenko
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Scientific Methods ◽  
European Court ◽  
International Court ◽  
Scope Of Application ◽  
The Subject ◽  
Effective Remedy ◽  
The Right

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle. 

scholarly journals Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state

2020 ◽  
Vol 33 (2) ◽  
pp. 335-369
Author(s):  
Veronika Fikfak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Human Rights Violations ◽  
International Treaty ◽  
European Court ◽  
International Court ◽  
Degrading Treatment ◽  
Individual Justice

AbstractThis article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.

2 Organization, Personnel, and Procedure

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
Fine Tuning ◽  
Original Version ◽  
European Convention ◽  
Member States ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Set Up ◽  
Advisory Opinions

This chapter discusses the organization, personnel, and procedures of the European Court of Human Rights (ECtHR), frequently referred to as the Strasbourg Court. The Member States are the masterminds for setting the framework of the Court’s organization, procedure, and personnel. The rules laid down in the original version of the European Convention on Human Rights (ECHR) in 1950 underwent substantial reform when the permanent Court was established in 1998 on the basis of Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The framework has been further modified by important additional protocols, especially Protocol No 14 allowing ‘single judges’ to adopt binding decisions, and Protocol No 16 introducing advisory opinions in addition to adversary procedures. However, not only the Member States make the rules. The Court itself has an important say in adapting the general set-up to its practical needs and in fine-tuning the regulations.

Rules of Law from Westport to Wladiwostok. Separate Opinions in the European Court of Human Rights

1997 ◽  
Vol 15 (2) ◽  
pp. 175-186 ◽  
Author(s):  
Fred J. Bruinsma ◽  
Matthijs De Blois
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Quantitative Research ◽  
Added Value ◽  
European Convention ◽  
European Court ◽  
International Court ◽  
Majority Judgment ◽  
Protection Of Human Rights ◽  
National Orientation

Whereas lawyers usually pay only attention to the added value of majority judgments in courts, we have taken an interest in the separate opinions of the European Court of Human Rights (the Court). The jurisdiction of this court stretches from Westport (Ireland) to Wladiwostok (Russia), and from Iceland to Cyprus. Member States of the Council of Europe have a right to select a national for the Court, and are politically expected to accept the Court's jurisdiction. The Preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) states that the participating European countries have ‘a common heritage of political traditions, ideals, freedom and the rule of law’. Article 51(2) ECHR entitles any judge to deliver a separate opinion, and pursuant to Article 43 the judge of the State in the dock sits ex officio. These two articles taken together inspired us to hypothesise about the separate opinion: does a judge dissent more often if the majority finds a violation of the Convention by his/her own country? A separate concurring opinion might be understood if we consider the judge as an intermediary between the international court and national audiences. Both ways, separate opinions are seen as expressions of a national orientation. On the basis of a quantitative research of the voting pattern from 1991 to 1995 we may conclude that the Court has become a truly international court, since it does not show any impact of national backgrounds. However, underneath the surface of figures we found some striking examples of national bias in separate opinions. In the second half of this article we bring them together under the heading of conservatism and judicial restraint – a separate undercurrent of the Court's mainstream of liberalism and judicial activism. There is not just one rule of law in Europe, there are many rules of law. But to see them you have to look beyond the majority judgment.

I. Constitutional Aspects

1997 ◽  
Vol 46 (3) ◽  
pp. 701-703
Author(s):  
Karl Newman ◽  
Sophie Boyron
Keyword(s):  
Human Rights ◽  
European Parliament ◽  
Maastricht Treaty ◽  
European Court Of Justice ◽  
European Convention ◽  
First Report ◽  
Court Of Justice ◽  
European Court ◽  
Set Up ◽  
First Time

Although these last two years have been relatively quiet in terms of institutional developments, a number of important inter-institutional agreements have been negotiated in order to facilitate the working of some of the powers granted by the Maastricht Treaty, while some other powers were used for the first time: the European Ombudsman has issued his first report, the European Parliament has set up two Committees of Inquiry. Lastly, the European Court of Justice delivered an important opinion as regards the European Convention on Human Rights.

Der "margin of appreciation" beim Europäischen Gerichtshof für Menschenrechte

2019 ◽  
Author(s):  
Paula Gorzoni
Keyword(s):  
Human Rights ◽  
European Convention ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Margin Of Appreciation ◽  
Formal Principle ◽  
International Human

The application of the margin of appreciation is indispensable in the practice of the European Court of Human Rights as the European Convention on Human Rights does not envisage the development of a single understanding of human rights for all states. However, it has to be taken into account that the states’ margin of discretion in this respect cannot be unlimited. The challenge is to find the necessary balance between the sovereignty of the national authorities and a coherent form of international human rights protection. This study analyses this challenge using the theory of principles. It raises the question of how an international balance, including the sovereignty or the competence of the national authorities as a formal principle, can be established. In the course of reconstructing the margin of appreciation by applying different models of formal principles in an empirical case study, the author develops an answer to this question.

El-Masri v. The Former Yugoslav Republic of Macedonia (Eur. Ct. H.R.)

2013 ◽  
Vol 52 (2) ◽  
pp. 558-622
Author(s):  
Christina M. Cerna
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Council Of Europe ◽  
Republic Of Macedonia ◽  
European Court ◽  
International Court ◽  
Yugoslav Republic ◽  
Grand Chamber ◽  
First Time ◽  
Modern War

On December 13, 2012, the Grand Chamber of the European Court of Human Rights (the Court) issued a final judgment in the case of El-Masri v. the former Yugoslav Republic of Macedonia. It found that Macedonia, as a State party to the European Convention on Human Rights (the Convention), was responsible for torturing El-Masri while he was in the former Yugoslav Republic of Macedonia (FYRM) The El-Masri judgment is the first time in which an international court has ruled on the U.S. practice of secret forced renditions. It follows the rationale of Soering v. United Kingdom, that a State can be held responsible for facilitating a violation by a State outside the Council of Europe, and places it in a modern war on terror context.

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