Lecture 10 Flashcards
(15 cards)
reasons why states wouldn’t want to stick with the ECHtHR and its legitimacy
- Insufficient respect for national diversity
- National authorities better places because they have their own criminal law system
- Insufficient respect for decisions by national parliaments
➞ it becomes problematic when states do this ALL the time, but these are some reasons why states don’t always want to stick with the judgements
Pierre-Henri Teitgen and the CoE
Convention being called ‘the conscience of Europe’ ➞ this isn’t what the convention has been about mainly as its about protecting individuals, but perhaps it has become more relevant again (to not have a tyrant)
Individual applications (article 34)
➞ automatic right for individual petition (this is unique)
Because the court focuses on individual cases, it could forgot the broader context (that human right violations are very often structural problems) ➞ the court fails to address the root of the human right problems
pilot-judgements
In order to address the individual applications, the court came up with the pilot-procedure
The pilot-judgment procedure can be regarded as an exception to the rule that the ECtHR’s judgments are declaratory in principle.
The pilot-judgment procedure can be regarded as an exception to the rule that the ECtHR’s judgments are declaratory in principle.
Explain why this is the case
They take a case or cases which show a systemic problem, and then they make one judgement. The court indicates measures (address the problem by amending the law for example). They don’t just declare a violation, but also tells the state what to do.
➞ This is an exception because the court orders general execution matters
inter-state applications (article 33)
➞ states would use this in order to show to the court that other states aren’t abiding the rights
but states don’t want to bring cases against other states just for the case of pointing out a human rights problem ➞ only to protect their own people in doing so. it has to reach them
- so, not the best way to address human right probelems
supervision of the execution of judgement by the Committee of Ministers
➞ article 46(2)
you could give the court the responsibility, but it was given to a political body
- this includes the infringement procedure
infringement procedure
➞ article 46 par 4&5
in 2010 this procedure was added. it is a tool that the committee of ministers have. they can bring a case to the court and ask the court if a state has failed to abide by a judgement
➞ 2/3rd majority needed of the committee
Kavala v Turkey
the joint reaction procedure + steps
➞ for serieus violation of article 3 CoE Statue
it gives the CoM, PACE and security general a dialogue
only te CoM can go to the 2nd step
Steps:
1. procedure is initiated ➞ joint high level
2. adoption and implementation of a joint road map, if it doesn’t lead to anything, then 3rd step
3. suspension of a member state’s right of representation (so it can’t vote) in the CoM and/or PACE or request to withdraw
After the Polish Constitutional Court adopted its judgment, the Polish Prime Minister sends out a press release in which he agrees with the Constitutional Court. He adds that Poland will not take any measures in response to the ECtHR judgment in the case of PHC v. Poland since the judgment is non-existent anyway. The Committee of Ministers wants to take action in response to this press release without involving the ECtHR again.
Which course of action would you recommend the Committee of Ministers to take? Describe briefly the steps of which the recommended procedure is composed
= the joint reaction procedure because the court isn’t part of the procedure
the infringement procedure in EU
art 258 TFEU
preliminary reference procedure in EU
art 267 TFEU
➞ that national judges may and sometimes must ask questions
art 7 TEU
This procedure can be done by the commission and 2/3rds of member states
- preventative mechanism = that there is a risk of a breach seen in article 2. Majority of 4/5th of the states need to agree with this (par 1)
- sanction mechanism = there is a persistent breach and it requires unanimity (par 2 & 3)
How is the sanction different here (in EU) than in the council of Europe?
its not possible to take a membership away (in the council of Europe you can)
- art 50 TFEU
Rule of law conditionality for funds
Regulation 2020/2092
This regulation makes it possible for the EU to withstand funds when states are breaching the rule of law and this effects the financial interest of the Union
