Preface
December 1948 is a remarkable date in the history of human rights law. It was the birth of Human Rights Law. Without exception, human rights belong to every single human being. The eighth secretary General Ban Ki-moon clearly found an adequate description to illustrate the significance of human rights while giving a speech at the 2011 Human Rights Day. Besides the significance of
their existence he focused on their constant development and practicable usage which requires all the nations to exercise human rights. His speech can be put in one significant sentence. “But unless we know them, unless we demand they be respected, and unless we defend our right -- and the right of others -- to exercise them, they will be just words in a decades-old document.”
So this led to a few questions:
Now, as we happen to have Human Rights Law in Europe what are the consequences regarding the jurisprudence and the legal practice in general? Further on, what are the judicial consequences in respect of violence against women?
How about the acquaintance within European courts especially the European Court of Human Rights Law?
Did it remain the same or are remarkable changes and developments observable?
Did the development in Europe force ‘us’ to accommodate the understanding and meaning of what was once essential but in a completely different way?
The main focus within this work basis on the case-law of the ECtHR in order to reveal the process, development, changes and reasonings of the Court, specifically in respect of the application of the principles of interpretation.
The case analyze will cover general state of affairs, e.g.: environmental
issues, gender based circumstances, press related matters, physical and psychological violence in general, etc. Moreover, regarding violence, a few cases in Section Five shall illustrate the judicial approach relating to violence against women in specific; especially, since the latest violent incidents in 2013, for example in India South-America but also in Eastern Europe, revealed that violence against women is a disastrous, unsolved and widespread matter.
Table of Contents
Section One:
I. Introduction: the case of RTBF
Section Two:
I. The significance of Universal Human Rights Law
II. Human Rights Law on appropriate scales
A. International perspective of Fundamental Rights
1. An international mechanism
a. International Organizations and International Law
aa. Excursus: Conditions according to the principles of Law: IGO’s and States
2. The United Nations
a. The Charter of the United Nations
aa. The purposes and principles of the Charter
b. Registered and commissioned institutions of the United Nations
c. The Universal Declaration of Human Rights Law
aa. General perspectives
bb. The Fundamental Freedoms and Human Rights of the Declaration
B. The European perspective of Human Rights Law
1. The European Union
a. Motives regarding the founding of the European Communities
aa. Excursus: The terms ‘European Communities‘ and ‘European Union‘
b. The legal impact of the European Community on Fundamental Rights
aa. The case of the ‘Internationale Handelsgesellschaft von Einfuhr-Vorratsstelle Getreide und Futtermittel‘
bb. The ‘Solange I Beschluss’ of the Federal Constitutional Court of Germany
cc. The revision of the ‘Solange I Beschluss’ through the ‘Solange II Beschluss‘
dd. Remarks referred to the ‘Solange Beschlüsse‘
c. The Constitutional Law of the European Union
d. Treaties and the impact on human rights
e. The Bill of Rights
C. The European Convention on Human Rights and Fundamental Freedoms
1. The first significant measures towards an appropriate implementation of Human Rights Law
2. The ‘Strasbourg machinery’
a. Excursus: The European Commission of Human Rights
3. The specific Convention Rights
a. The nature of the Convention rights
b. Interferences with fundamental rights
c. Jurisprudence, qualified rights and the margin of appreciation
d. A continuing revolution through the implementation of protocols
D. General aspects
1. Treaties as an instrument of Law
a. The ECHR as an international source of law
2. The international position of the ECHR
a. The ECHR and domestic law
Section Three:
I. General aspects of the jurisdiction of the ECtHR in regard of diversity
A. Excursus: The third party effect
1. The recognition of the third party effect through the case law of the ECtHR
a. Case of Airey v. Ireland in respect of the third party effect
II. The Courts’ case-law in respect of significant principles and methods of interpretation
A. The Principle of Subsidiarity
1. The implementation and effects of the principle of Subsidiarity
a. Further effects of the principle of Subsidiarity
B. The Interpretation of the Convention
1. Methods developed and utilized by the European Court of Human Rights
a. The evolutive interpretation
aa. The application of the evolutive interpretation within the case law of the ECtHR
(1) The case of Rees v. the UK
(2) The case of Cossey v. the UK
(3) Judicial re-consideration of the former judgments: The case of Christine Goodwin v. the UK
b. The margin of appreciation
aa. Theoretical aspects of the margin of appreciation
bb. Analyzes of the case law in respect of the margin of appreciation
(1) The case of the Sunday Times v. the UK in the light of Article 10 ECHR
α) The facts
β) Examination of a violation of Article 10 ECHR
γ) The argumentation of the ECtHR
δ) Conclusion
(2) The case of Handyside v. the UK regarding the freedom of speech
α) The facts
β) The argumentation offered by the different entities
γ) Conclusion and further consequences of the judgment
ee. The difficulties regarding the utilization of the margin of appreciation
(1) The case of Hirst v. the UK
α) The facts
β) The argumentation regarding a violation of Article 3 ECHR
γ) The significance of the dissenting opinions on the case
δ) Conclusion
ff. Criticism on the margin of appreciation through the Hatton-case
(1) The case of Hatton v. the UK
α) The facts
β) The argumentation of the ECtHR regarding a violation of Article 8 ECHR
γ) Conclusion and critical remarks
δ) Dissenting opinions
2. Excursus: An insight into further ECtHR related interpretation mechanisms
a. The autonomous interpretation
b. The comparative interpretation
c. Proportionality
aa. The four question test generated by the ECtHR
bb. Criticism towards the principle of Proportionality
C. Conclusive remarks
Section Four:
I. The legal machinery
A. The substantive power of the legal machinery regarding the Admissibility
1. The impact of implementing Protocol No. 11
2. The admissibility criteria
a. The criteria of exhaustion of all remedies
aa. The case of Earl Spencer v. the United Kingdom
bb. The case of X v. Iceland
3. Excursus: The scope of an application respectively acting exterritorial
B. controlling mechanism
1. Inter- State applications
2. Applications by individuals
Section Five:
I. International abandonment of violence against women
A. Report of the Council of Europe regarding violence against women
1. The facts
2. Definition, categories and the presence of violence against women
3. Cases concerning violence against women
a. Violation of Article 3 of the ECHR
b. Violation of Article 8 of the ECHR
c. Violation of Article 3 ECHR and Article 8 ECHR
II. Excursus: Cases concerning the private life of women
A. General questions in respect of the right to life
1. The protection of life versus the right to private life
2. Protection of Life During Pregnancy Act 2013
Section Six:
I. Closing remarks
II. Appendix
A. The Universal Declaration of Human Rights
B. The Charter of the United Nations
C. The Statutes of the International Court of Justice
D. Convention for the Protection of Human Rights and Fundamental Freedoms
E. Protocol No. 11
F. Protocol No. 14
G. Protocol No. 15
H. Protocol No. 16
Research Objectives and Key Themes
The primary objective of this thesis is to provide a comprehensive analysis of the legal machinery and jurisprudence of the European Court of Human Rights (ECtHR), focusing on how the Court navigates complex legal challenges while upholding fundamental human rights. By examining specific case law, the research explores how the Court balances national sovereignty with the supra-national requirements of the European Convention on Human Rights (ECHR), particularly in the context of evolving societal standards and potential conflicts between domestic law and international human rights mandates.
- The jurisdictional role and evolving interpretation methods of the ECtHR.
- The application and legal significance of the "margin of appreciation" in various judicial contexts.
- Positive obligations of Member States regarding the protection of individuals against human rights abuses, including domestic violence.
- The interaction between international law, constitutional traditions, and regional human rights protection systems.
- Critical analysis of the procedural and structural challenges facing the ECtHR, such as its docket crisis and the principle of subsidiarity.
Extract from the Book
I. Introduction: the case of RTBF
As mentioned in the preface, the main purpose of this thesis is to analyze how the ECtHR works, judges and which difficulties might appear. In order to understand the judgments and the legal machinery in Strasbourg, I want to start with a case; the RTBF-case. For example, one of the leading questions is, how did Human Rights Law affect the national and international jurisdiction? It becomes clear by the following example; the national courts have to consider the principles and fundamental rights, which are provided by the ECHR. On the one hand, the ECtHR investigates if the acts of the national authorities are in accordance with those principles, and, on the other hand, it examines if any interference with the fundamental rights, as we experienced in the first case, could be justifiable or not. To sum up, the ECtHR analyzes if a national judgment is legitimate or not in respect of human rights law. Of course, the ECtHR had to find its way to offer well considered judgments regarding the arguments and methods; consequently, I like to offer an insight by revealing the work in form of analyzing specific chosen cases.
We habitually consume information on a daily basis. Newspapers, television, internet, radio and other knowledge intercessional media offer all sorts of information. However, it forces the question if there are any boundaries within sharing and publishing information. To be more specific, the question is whether there should be set a boundary to restrict and control individuals, companies and groups of individuals or not. For example, in one case the European Court decided on an application from the RTBF in which the public broadcasting company of the French Community in Belgium alleged a violation of the freedom of expression. As to the facts: the company broadcasts a program which is dealing with judicial matters. Part of their reveals contained concerns regarding medical risks and similar topics. Therefore they brought up an example. The company showed complaints by patients about their treatment and doctors. It should be noted that these issues have been reported before within the newspapers (printed media). The accused doctor submitted the case to the Court. After this reaction the responsible judge granted an interim injunction, preventing the company from broadcasting this program, until a decision has been made on the merits. Decisions have not been made by the time the case had been lodged with the European Court. The focus was laid on the interim injunction. First, RTBF alleged to be violated in their right of access to a Court
Summary of Chapters
Section One: This section provides an introductory overview of the thesis objectives, using the RTBF case to illustrate the interaction between national judicial practices and ECtHR oversight.
Section Two: This chapter examines the foundations of human rights law, discussing the roles of the United Nations and the European Union, and analyzing key legal milestones like the 'Solange' decisions.
Section Three: The third section focuses on the jurisdiction of the ECtHR, detailing significant interpretative principles like subsidiarity, the margin of appreciation, and the evolutive nature of Convention rights.
Section Four: This chapter explores the administrative and legal machinery of the Court, specifically addressing admissibility criteria and the implications of protocol implementations.
Section Five: The focus here is on the international approach to violence against women, analyzing state responsibility and relevant case law involving Article 3 and Article 8 of the ECHR.
Section Six: The concluding remarks reflect on the successful yet challenging evolution of the ECtHR as a guardian of fundamental rights in a changing European society.
Keywords
European Court of Human Rights, ECtHR, Human Rights Law, ECHR, Margin of Appreciation, Principle of Subsidiarity, European Union, Fundamental Freedoms, Violence Against Women, Case Law, Legal Machinery, International Law, Judicial Interpretation, Sovereignty, Strasbourg Machinery
Frequently Asked Questions
What is the core focus of this thesis?
The work primarily analyzes the functional processes, judicial decision-making, and structural challenges of the European Court of Human Rights, using specific case studies to demonstrate how it handles conflicts between national laws and Convention standards.
What are the primary themes discussed?
The thesis covers universal human rights law, the interaction between European and national legal systems, the Court's interpretative methods, and the judicial response to violence against women.
What is the main research question of the work?
The author explores how Human Rights Law influences national and international jurisdictions, specifically asking how the ECtHR maintains its authority while adapting to the evolving legal and societal landscapes of its Member States.
What scientific methods does the author utilize?
The work uses a qualitative, case-law-oriented approach, analyzing significant judgments from the ECtHR and international courts to extract legal principles and interpretative mechanisms.
What is covered in the main body of the text?
The main sections systematically move from general human rights foundations (UN/EU levels) to the specific jurisdiction of the ECtHR, covering interpretation techniques, admissibility of cases, and targeted protection areas like gender-based violence.
Which keywords best characterize this publication?
The key concepts include ECtHR, ECHR, margin of appreciation, subsidiarity, human rights protection, case law, judicial interpretation, and sovereignty.
How does the author explain the 'margin of appreciation'?
It is described as a flexible but stringent instrument that allows Member States a degree of discretion in implementing Convention rights, reflecting their individual cultural, historical, and social conditions, while remaining subject to the Court’s supervisory role.
What is the author's conclusion regarding the future of the ECtHR?
The author concludes that while the ECtHR has achieved remarkable success as a legal regime, it faces significant challenges regarding its workload and the consistent enforcement of its judgments, suggesting that structural reforms and closer cooperation with EU institutions may be necessary.
- Quote paper
- Sarah Maringele (Author), 2014, The European Court of Human Rights, Munich, GRIN Verlag, https://www.grin.com/document/267583
