Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview
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4
The European Convention on Human Rights and Criminal Justice in the Netherlands and the United Kingdom

BERT SWART AND JAMES YOUNG


INTRODUCTION

Both the Netherlands and the UK became parties to the European Convention at an early stage in its history, the UK in 1951 and the Netherlands in 1954. Both have accepted the right of aggrieved individuals to petition the European Commission of Human Rights and the compulsory jurisdiction of the European Court of Human Rights at the instigation of the Commission or another State Party to the Convention--the Netherlands in 1960 and the UK in 1966. However, the marked difference in approaches to the performance of their treaty obligations has made a considerable difference to the way in which the influence of the Convention has been felt in the two states. In the Netherlands the Convention is enforceable in the courts, whereas successive British governments have rejected proposals to make Convention rights domestically justiciable. Furthermore, the difference between the criminal justice systems in both countries has meant that challenges to national law and practice have been directed at different aspects of each system.

Differences between the two legal systems raise interesting questions of comparative law. First, what difference does it really make to the effective implementation of a human rights convention whether or not national courts of a Contracting Party are empowered to apply the convention directly? Secondly, can it be said that the Convention exerts a harmonizing influence on the criminal justice systems concerned? More specifically, the most tantalizing question here is whether the Convention contributes to a convergence between legal systems that belong to the common law tradition, like the UK, and those belonging to the civil law tradition, like the Netherlands. To these complex questions we shall try to provide elements of possible answers.

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