OUVRAGE : J.H. Gerards, F. Fleuren (eds.), Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law

Catherine MAIA

The European Convention on Human Rights has a large impact on national law, in particular through the case-law of the European Court of Human Rights. In most Convention states, the authorities loyally implement the Court’s interpretations in their legislation, case-law and administrative decisions. Over the past few years, however, especially in some Western European democracies where the ECHR is robustly incorporated into the national legal systems, critical voices have been raised to question the degree of the Court’s influence over national law and politics.

It turns out that many of the current debates are based on two implied assumptions and intuitions. It is felt, firstly, that the Court exercises such great influence that national authorities, in particular courts, have to act as marionettes – they must follow the Court’s movements, even if they want to act differently. The second assumption is that this marionette behaviour and its constitutionally questionable consequences are facilitated and accommodated by the legal and constitutional mechanisms determining the national courts’ competences.

This book questions the correctness of these assumptions and aims for further study of them. This is done by disentangling and illuminating the different elements underlying the interrelationship between the Court and the national courts. The objective is to distinguish between the requirements set by the Court; the constitutional powers and competences of national courts to interpret and apply international law, in particular the Convention; the way in which these courts actually use these competences to deal with the Court’s interpretative approaches; and the type of criticism that is levelled at the Court’s case-law. These elements are studied from the perspective of the Court as well as from a national perspective, in particular for Belgium, France, Germany, the Netherlands, Sweden and the United Kingdom.

Analysing these elements separately enables a fruitful assessment of their interrelationship and provides a sound basis for a constructive debate on the implementation of the Convention in national law, which is based on solid constitutional foundations rather than assumptions and intuitions. The current book is therefore of great interest to those who are interested in debates on the interrelationship between the Court and the states – scholars, as well as judges, policy makers and politicians – but also to those who take a more general interest in constitutional implementation mechanisms, judicial powers and judicial argumentation.


TABLE OF CONTENTS

Chapter 1. Introduction - Janneke Gerards and Joseph Fleuren

1. Evolutive interpretation, national courts and the legitimacy of the uropean Court of Human Rights
2. Approach and methodology
3. Outline of the book

Chapter 2. The European Court of Human Rights and the national courts: giving shape to the notion of ‘shared responsibility’ - Janneke Gerards

1. Introduction
2. The Court’s raison d’ être
3. The shared responsibility of the Court and the national courts
4. Giving shape to shared responsibility: principles and methods of interpretation
5. Procedural review and ‘judicial minimalism’
6. Judicial dialogue
7. Dialogue and national political and media criticism
8. Summary and conclusions
Annex: questions for the interviews at the European Court of Human Rights

Chapter 3. Belgium - Guan Schaiko, Paul Lemmens and Koen Lemmens

1. Constitutional background
2. Status of international law in domestic law
3. Judicial review
4. Implementation of the European Convention on Human Rights by national courts
5. The impact of ECtHR judgments on national judicial decision making
6. Legitimacy of the ECtHR as an issue in public debate?
7. Conclusion

Chapter 4. France - Céline Lageot

1. Introduction: a brief characterisation of the French constitutional system
2. Constitutional review in France: the role of the Constitutional Council
3. The status of international law and the ECHR in the French constitutional order
4. Judicial competences to review the compatibility of norms with international law
5. The application of ECHR provisions by French courts
6. Effects of the ECtHR case-law on national case-law, legislation and legal practice
7. The role and position of the ECtHR debated in the country
8. Conclusion

Chapter 5. Germany - Eckart Klein

1. The constitutional system
2. Status of international law in domestic law
3. Judicial review
4. Implementation of the European Convention on Human Rights by national courts
5. The impact of the judgments of the European Court of Human Rights on national judicial decision making
6. Legitimacy debates: the ECtHR and the national courts
7. Conclusions

Chapter 6. The Netherlands - Janneke Gerards and Joseph Fleuren

1. Introduction: constitutional background
2. Status of international law in domestic law
3. Judicial review
4. Implementation of the European Convention on Human Rights by the Dutch courts
5. The impact of the judgments of the ECtHR on national judicial decision making
6. Debates about the ECtHR and the national courts
7. Conclusions

Chapter 7. Sweden - Iain Cameron and Thomas Bull

1. Introduction: constitutional background
2. The status of international law in domestic law
3. Constitutional review
4. Implementation of the European Convention on Human Rights by Swedish courts
5. The impact of the judgments of the ECtHR on national judicial decision making
6. Legitimacy debates: the ECtHR and the national courts
7. Concluding remarks

Chapter 8. The United Kingdom - Roger Masterman

1. Introduction
2. The status of international law in the United Kingdom
3. Judicial review and the protection of human rights
4. The implementation of the ECHR by national courtsThe impact of ECtHR decisions on judicial decision making
5. The impact of ECtHR decisions on judicial decision making
6. Legitimacy debates: the European Court of Human Rights and national authorities
7. Conclusions

Chapter 9. Comparative analysis - Janneke Gerards and Joseph Fleuren

1. Introduction
2. The status of international law, in particular the ECHR, in the domestic legal orders
3. Dealing with the judgments and decisions of the Court
4. Debate about the Court and its case-law
5. Conclusions

Appendix

Janneke H. GERARDS, Joseph FLEUREN (eds.), Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law: A comparative analysis, Cambridge, Intersentia, 2014 (385 pp.)