The European Court of Human Rights: Implementing Strasbourg's Judgements on Domestic Policy

The European Court of Human Rights: Implementing Strasbourg's Judgements on Domestic Policy

The European Court of Human Rights: Implementing Strasbourg's Judgements on Domestic Policy

The European Court of Human Rights: Implementing Strasbourg's Judgements on Domestic Policy

Synopsis

Since the turn of the millennium, the European Court of Human Rights has been the transnational setting for a European-wide 'rights revolution'. One of the most remarkable characteristics of the European Convention of Human Rights and its highly acclaimed judicial tribunal in Strasbourg is the extensive obligations of the contracting states to give observable effect to its judgments. This book explores the domestic execution of the European Court of Human Rights' judgments and dissects the variable patterns of implementation within and across states. It also relates how marginalised individuals, civil society and minority actors strategically take recourse in the Strasbourg Court to challenge state laws, policies and practices. These bottom-up dynamics influencing the domestic implementation of human rights have been little explored in the scholarly literature until now. By adopting an inter-disciplinary perspective, this volume seeks to go beyond the existing, mainly legal and descriptive studies and contributes to the flourishing scholarship on human rights, courts and legal processes, and their consequences for national politics.

Excerpt

Dia Anagnostou

Over the past couple of years, the European Convention of Human Rights (hereafter ECHR or Convention) and its judicial arm in Strasbourg have attracted renewed scholarly interest. The European Court of Human Rights (hereafter ECtHR or Court) is a paradigmatic instance of a transnational tribunal that fundamentally differs from an international court based on interstate processes: it allows individuals, but also other civil society actors, to raise claims against states, once they exhaust domestic remedies. Over time, poised between judicial restraint and activism, the Court has expansively interpreted the basic civil and political rights contained in the Convention, as well as scrutinising states’ restrictions of those rights. Through individual petitions, a large array of state laws and practices, including areas that are sensitive for national interests and security, such as those pertaining to minorities and immigrants, have come under its purview. Through both dynamic interpretation and enforcement, the ECtHR has over time substantially upgraded and expanded human rights standards across established European democracies, and also vis-à-vis the democratising states of the excommunist world. Having come a long way from its obscure origins in the 1950s, it is now increasingly constitutionalised and it is characterised as the single most important rights-protecting tribunal in the world.

Among the Convention’s most remarkable characteristics is the obligation of national authorities to implement adverse judgments issued by the ECtHR. This involves a decentralised system of institutions and actors assigned responsibility for implementation at the national level, along with robust supervisory and enforcement mechanisms at the European level. Implementation is thoroughly rooted in the principle of subsidiarity: national authorities must define the nature and scope of measures that are necessary to remedy a violation detected by the ECtHR, in cooperation with the supervisory bodies of the Convention system, and the Committee of Ministers (CoM) in particular. While some judgments mainly require just satisfaction and an individual remedy, most rulings necessitate domestic legislative and administrative reforms to prevent recurrence of infringements of the Convention in the future, as well as shifts in national judicial approach and interpretation. Far from being overlooked, state compliance . . .

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