Gap-Filling and Judicial Activism in the Case Law of the European Court of Human Rights (original) (raw)
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The European Convention and Human Rights in the Judgements of the EU Courts
Multicentrism as an Emerging Paradigm in Legal Theory, M. Zirk-Sadowski, M. Golecki, B. Wojciechowski, (red.) Peter Lang 2009, (ISBN 978-3-631-59563-3), 2009
Protection of human rights is the European Community (EC)/European Union (EU) is a complicated issue which can be analyzed from the dogmatic, theoretical and judgmental perspective. The paper covers deliberation on the European Convention for the Protection of Human Rights and Fundamental Freedoms in the context of its application by EU courts. Considering an unclear relation of the Convention to the European Community’s and European Union’s legal system the question the EU courts deal with is rather whether and to what extend it may constitute a basis for the decision rather, than how to apply it. It is also worthwhile to differentiate the terms related to the matter of “human rights”: the human rights themselves as a category of shaped by the Convention and European Court of Human Rights (ECHR); the constitutional freedoms arisen from the domestic legal systems and the fundamental rights linked to the system of European Community and case-law of the European Court of Justice (ECJ). Those various terms may bring and quite often do bring different understandings of the content scope of individual rights in the judgments of ECHR and ECJ. Since recognizing the human rights as a matter protected by the legal system of European Communities, the ECJ while answering the question where the “fundamental rights” can be derived from and what is the exact scope in the concrete case is constantly balancing between the respect for judgmental line of ECHR and the principle of autonomy of European Community/European Union system. However, the recognition of fundamental rights as a part of general principles of Community law (but not a written treaty law, though) did not solve the law-making issue on the subject of human rights. It also does not solve the question of possible conflict of rules on that matter. The liaisons between the system of European Convention, the EC law and the domestic legal systems, the new concept of sovereignty particularly emphasize the fact that not only contemporary legal theory is quite far form Kelsen’s monism of legal system, but also that in human rights cases the “three-dimentional” point of view is an existing standard and co-existence, co-inspiration and cooperation seems to be an unavoidable issue.
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 interpretation of the European Convention on Human Rights
The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges’ of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.
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.
2015
Opinion 2/13, by which the CJEU declared incompatible with the EU treaties the long-negotiated draft agreement on EU accession to the ECHR, came as a shock to many observers. Yet, the relation between the ECJ and the ECtHR has a glorious past, and can continue to have a bright future. While the dust kicked up by Opinion 2/13 settles, the article takes a step back and puts the ruling of the CJEU in a wider context. It recalls the long-standing historical relations between the CJEU and the ECtHR, and discusses the possible scenarios that may open up in the future. In particular, it claims that, even in the aftermath of Opinion 2/13, a virtuous competition between the CJEU and the ECtHR can have beneficial effect for the protection of fundamental rights, as evidenced by the case of judicial review of targeted UN sanctions. At a time of increasing frustration and preoccupation on the relation between the CJEU and the ECtHR, the article strikes a note of optimism, suggesting that the interaction between the two European supranational courts can still play a positive role for fundamental rights in Europe.
Interpretation of the European Convention on Human Rights
Universal Civil Jurisdiction, 2020
The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges' of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.