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19 results

  • Bringing Rights More Home: Can a Home-grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?

  • Sarah Lambrecht
  • Journal:
    German Law Journal / Volume 15 / Issue 3 / 01 May 2014
    Published online by Cambridge University Press:
    06 March 2019, pp. 407-436
    • Article
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  • This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.

  • Chapter 1 - Introduction: Purpose and Structure, Categorisation of States and Hypotheses

  • from PART I - INTRODUCTORY
    • By Patricia Popelier, Professor of Constitutional Law at the University of Antwerp and vice-dean for research at the law faculty, Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp, Koen Lemmens, PhD from the European University Institute (Fiesole, Italy) and is Associate Professor of Public Law at KU Leuven (Belgium)
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 3-22

  • Summary

    PURPOSE OF THE EDITED VOLUME

    For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. The most severe criticism has been voiced in the UK, where ‘charges against the Court … over the past two years have been unprecedented’. Also voices outside the UK, however, have subscribed to these views. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. This is exactly what the Strasbourg Court was facing within the reform talks leading up to the Brighton Conference under the UK Chairmanship of the Committee of Ministers of the Council of Europe. Ultimately, however, the Brighton Declaration advanced for the most part a technical reform. It is therefore unlikely that the Brighton Declaration and the ensuing Protocol No 15 will be able to tone down opponents of an activist European Court. The Court will thus very carefully need to maintain the difficult balance between human rights protection and respect for national sovereignty.

    The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. Secondly, the volume assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. These questions have so far remained largely unexplored, especially cross-nationally. Therefore, the focus is not solely put on countries that are known to have highly critical voices and that, particularly in the case of the UK, have been heavily documented. Rather, we aim to evaluate whether a change in dynamics is a pan-European reality or merely limited to a few countries.

    For this reason, our coverage is wide, compromising fifteen Contracting Parties and the EU, as a future Contracting Party. Every in-depth report is based on the same structured questionnaire, which can be found in the annex. The authors also followed the same chapter template which coincides with the questionnaire, as to encourage easy comparison for the reader.

  • Annex 1 - Questionnaire

  • from APPENDIX
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 557-562

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

  • To what extent is there criticism of the European Court of Human Rights regarding its interpretation of the Convention, its functioning and its legitimacy (a) in the media, (b) in academia, (c) in the political world and (d) in the judiciary?

  • Is the lack or presence of criticism linked to the status of the Convention and the ECtHR judgments in the national legal system? Why?

  • Has there been a recent surge in criticism? If so, what sparked this?

  • Is this criticism widespread and/or permanently present or only sporadic and/or temporary? Why?

  • Is this criticism aimed at specific judgments or is it more systemic, namely aimed at the general mechanisms of interpretation, general functioning or overall legitimacy of the European Court of Human Rights?

  • If there is a significant difference in the amount and nature of criticism of the European Court of Human Rights in the different fields (media, academia, politics and judiciary), does this cause any specific tensions at the national level? Has this had any effects on their interrelationship?

    • COUNTER-DYNAMICS AT THE POLITICAL LEVEL

    POLITICS AND THE CONVENTION SYSTEM

  • To what extent is the Convention system part of the political/electoral debate?

  • Do parties have distinct views on the (reform of the) European Court of Human Rights and the European Convention on Human Rights? If so, what are they? Are they one of the core points of the political party's manifesto/identity?

  • Have the political parties’ positions evolved? For instance, have they become increasingly in favour for reforming the European Court of Human Rights or become increasingly euro-sceptic or euro-friendly? If so, why?

    • POLITICAL STRATEGIES AT THE EUROPEAN LEVEL: REFORM OF THE CONVENTION SYSTEM

  • What was the position of the national government in the build-up to the Brighton Conference in April 2012 concerning the reforms needed to the Convention system? Was this position beforehand and/or afterwards discussed in the national parliament? If so, to what extent and did this reveal differences in opinion between the political parties and majority v. opposition?

  • To what extent did the government and parliament agree with the UK Draft of the Brighton Declaration?

Criticism of the European Court of Human Rights
  • Shifting the Convention System: Counter-dynamics at the National and EU Level
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016
  • For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. It also assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. The book is topical and innovative, as these questions have so far remained largely unexplored, especially cross-nationally.Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU.With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Banczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majercík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander.

  • Chapter 3 - European Union: The EU's Attitude to the ECHR

  • from PART I - INTRODUCTORY
    • By Clara Rauchegger, PhD Candidate at the University of Cambridge (Trinity Hall) and a scholar of the Austrian Academy of Sciences and the UK Arts & Humanities Research Council, Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 41-72

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

    This chapter is unique in that it is the only one in this volume which addresses counter-dynamics of a future Contracting Party to the European Convention on Human Rights (ECHR). The Council of Europe and the European Union (EU) have a long tradition of cooperation which draws on their shared values and there are many formal links between the two organisations.1 However, the EU has not yet acceded to the ECHR.

    The accession of the EU to the ECHR has been on the European agenda for over thirty years. In its Opinion 2/94 delivered in 1996, the Court of Justice of the EU (CJEU, Luxembourg Court) had ruled that the European Community had no competence to accede to the ECHR as there was no adequate legal basis in the EU Treaties for accession. The Treaty of Lisbon answered the Court's demands by introducing a clear obligation for the EU to accede to the ECHR in Article 6(2) Treaty on European Union (TEU).

    The accession negotiations between the Council of Europe and the European Commission started in July 2010, shortly after the entry into force of the Treaty of Lisbon. Three years later, a newly formed ‘47+1’ group, which comprised representatives of all Council of Europe Contracting Parties and of the European Commission, completed the negotiations by adopting a Draft Accession Agreement (DAA). However, in the report on the final negotiation meeting, the EU representative already indicated that several political and procedural hurdles were still to follow, most notably the CJEU's assessment of the compatibility of the draft agreement with the EU Treaties.

    In its seminal Opinion 2/13 issued on 18 December 2014, the CJEU ruled that the DAA is not compatible with the EU Treaties. This conclusion contrasts with that of the European Commission, the Council, the European Parliament and the 24 Member States who submitted written observations. Moreover, Advocate General Kokott had suggested a conditional ‘yes’ to an accession under the DAA.

    Against this backdrop, this chapter examines the attitude of the EU to the ECHR.

  • Chapter 19 - Assessing the Existence of Criticism of the European Court of Human Rights

  • from PART VI - SYNTHESIS
    • By Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 505-554

  • Summary

    INTRODUCTION: STATUS OF THE ECHR

    This book explores the existence of criticism of the European Court of Human Rights and to what extent such criticism has been translated in counterdynamics at the political or judicial level in fifteen national legal orders and the European Union. As shown in the introductory chapter, the positions towards the European Court of Human Rights are complex and nuanced. Drawing overarching generalisations is therefore not appropriate. Nonetheless, some distinct divergences and convergences in attitudes can be detected, which are explored in this concluding chapter. As an introduction, the varying status of the ECHR in the national legal orders is framed, before analysing the positions at the political and judicial level towards the Convention system.

    The ECHR is currently incorporated in all the countries examined in this volume. Most of the covered countries follow a monist system (Austria, Belgium, Czech Republic, France, Netherlands, Poland, Switzerland, Turkey and Russia). Even in the countries with a dualist tradition (Germany, Hungary, Italy, Norway, Sweden and the United Kingdom), the ECHR has developed a privileged status. The country reports reveal that the monist or dualist nature of a State does not determine the status of the ECHR in national law in practice. Overall, the status of the ECHR has significantly increased over time either by deliberate jurisprudential, legislative or constitutional changes.

    In several monist countries, the ECHR is granted a supra-constitutional status. In both the Netherlands and Switzerland, the ECHR has been given a prominent position as a substitute to constitutional review of primary legislation, which is explicitly banned in the Constitution. Thus, in the Netherlands, international law outranks national legal rules in the hierarchy of law, including the Constitution. Every Dutch court is empowered to disapply a legal provision if it is in conflict with self-executing provisions of treaty law. Perhaps unsurprisingly, the Dutch courts seem more familiar with the rights provided for in the ECHR than those in the Dutch Constitution. In Switzerland, the Federal Supreme Court similarly ruled that in cases of conflict of domestic norms with the ECHR, the ECHR is given precedence over norms of any rank, even constitutional law. The high rank and direct applicability of the ECHR counterbalances the predominance of the legislature over the judiciary. Today, the Federal Supreme Court regularly reviews domestic norms of all levels against the ECHR.

  • Annex 2 - Questionnaire EU

  • from APPENDIX
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 563-566

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

  • To what extent is there criticism of the European Court of Human Rights regarding its interpretation of the Convention, its functioning and its legitimacy (a) in the political world and (b) in the judiciary?

  • Is the lack or presence of criticism linked to the status of the Convention and the ECtHR judgments in the national legal system? Why?

  • Has there been a recent surge in criticism? If so, what sparked this?

  • Is this criticism widespread and/or permanently present or only sporadic and/or temporary? Why?

  • Is this criticism aimed at specific judgments or is it more systemic, namely aimed at the general mechanisms of interpretation, general functioning or overall legitimacy of the European Court of Human Rights?

  • If there is a significant difference in the amount and nature of criticism of the European Court of Human Rights in the different fields (media, academia, politics and judiciary), does this cause any specific tensions at the EU level? Has this had any effects on their interrelationship?

    • COUNTER-DYNAMICS AT THE POLITICAL LEVEL

    POLITICS AND THE CONVENTION SYSTEM

  • To what extent is the Convention system part of the political/electoral debate?

  • Do European political groups in have distinct views on the (reform of the) European Court of Human Rights and the European Convention on Human Rights? If so, what are they? Are they one of the core points of the political groups’ manifesto/identity?

  • Have the European political groups’ positions evolved with regard to reform of the Convention system and EU accession? For instance, have they become increasingly in favour for reforming the European Court of Human Rights or become increasingly euro-sceptic or euro-friendly? If so, why?

    • POLITICAL STRATEGIES AT THE EUROPEAN LEVEL:

    REFORM OF THE CONVENTION SYSTEM

  • What was the position of European Parliament, the Commission and the Council in the build-up to the Brighton Conference in April 2012 concerning the reforms needed to the Convention system? Was this position beforehand and/or afterwards discussed in the European Parliament? If so, to what extent and did this reveal differences in opinion between the political groups?

  • To what extent did the European Parliament, the Commission and the Council agree with the UK Draft of the Brighton Declaration?