David Kosař and Jan Petrov
- Published in print:
- 2019
- Published Online:
- November 2019
- ISBN:
- 9780198849667
- eISBN:
- 9780191883941
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198849667.003.0016
- Subject:
- Law, Public International Law
The Strasbourg system of human rights has been going through a backlog, legitimacy, and implementation crisis during the past decade. Debates addressing the future of the ECHR system and seeking ...
More
The Strasbourg system of human rights has been going through a backlog, legitimacy, and implementation crisis during the past decade. Debates addressing the future of the ECHR system and seeking answers to those challenges have concentrated on the domestic level of the Strasbourg system. This chapter concurs that domestic actors, and the domestic judiciary in particular, are essential for the effectiveness and legitimacy of the Strasbourg system since they ‘diffuse’ the ECtHR’s conclusions domestically and subsequently ‘filter’ human rights claims. However, the chapter seeks a more nuanced approach to the role of domestic courts in the architecture of the ECHR system. It problematizes the contribution of domestic courts to the ECHR’s effectiveness on three accounts. First, courts are not the sole actors involved in domestic implementation mechanisms. The judiciary enters into multiple interactions with other domestic actors and is not necessarily always victorious. Second, there are several actors within the judiciary who may have different attitudes to the ECtHR such as the constitutional court, apex courts, lower courts, court presidents, and judicial associations. Third, not all those actors unequivocally support implementation of Strasbourg case law and some of them have shown considerable resistance to the ECtHR. These insights should provide a more nuanced basis for addressing the future of the ECHR system.Less
The Strasbourg system of human rights has been going through a backlog, legitimacy, and implementation crisis during the past decade. Debates addressing the future of the ECHR system and seeking answers to those challenges have concentrated on the domestic level of the Strasbourg system. This chapter concurs that domestic actors, and the domestic judiciary in particular, are essential for the effectiveness and legitimacy of the Strasbourg system since they ‘diffuse’ the ECtHR’s conclusions domestically and subsequently ‘filter’ human rights claims. However, the chapter seeks a more nuanced approach to the role of domestic courts in the architecture of the ECHR system. It problematizes the contribution of domestic courts to the ECHR’s effectiveness on three accounts. First, courts are not the sole actors involved in domestic implementation mechanisms. The judiciary enters into multiple interactions with other domestic actors and is not necessarily always victorious. Second, there are several actors within the judiciary who may have different attitudes to the ECtHR such as the constitutional court, apex courts, lower courts, court presidents, and judicial associations. Third, not all those actors unequivocally support implementation of Strasbourg case law and some of them have shown considerable resistance to the ECtHR. These insights should provide a more nuanced basis for addressing the future of the ECHR system.
Elena Pribytkova
- Published in print:
- 2019
- Published Online:
- January 2020
- ISBN:
- 9781447341284
- eISBN:
- 9781447341338
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781447341284.003.0016
- Subject:
- Sociology, Social Stratification, Inequality, and Mobility
This paper analyses the practice of the European Court of Human Rights (ECtHR), which gives judicial protection to minimum socio-economic guarantees indispensable for freedom from poverty while ...
More
This paper analyses the practice of the European Court of Human Rights (ECtHR), which gives judicial protection to minimum socio-economic guarantees indispensable for freedom from poverty while addressing civil and political rights enshrined in the European Convention on Human Rights (ECHR). I explore the normative basis, scope, strategies, conditions and effectiveness of the ECtHR’s enforcement of basic socio-economic guarantees, such as access to adequate food, water, sanitation, housing, clothing, health, and social security. The paper examines the virtues and shortcomings of the ECtHR’s approach and discusses legal and political measures necessary to improve judicial protection of the poor in Europe. It shows the necessity of the elaboration of a systematic legal conception clarifying the content and scope of socio-economic guarantees of freedom from poverty protected by the ECHR as well as common standards of their judicial enforcement. At the same time, I advocate for the direct judicial protection of socio-economic rights at the European level. An essential political measure in this sense would be the expansion of the Court’s jurisdiction to the rights enshrined in the European Social Charter and the Revised European Social Charter.Less
This paper analyses the practice of the European Court of Human Rights (ECtHR), which gives judicial protection to minimum socio-economic guarantees indispensable for freedom from poverty while addressing civil and political rights enshrined in the European Convention on Human Rights (ECHR). I explore the normative basis, scope, strategies, conditions and effectiveness of the ECtHR’s enforcement of basic socio-economic guarantees, such as access to adequate food, water, sanitation, housing, clothing, health, and social security. The paper examines the virtues and shortcomings of the ECtHR’s approach and discusses legal and political measures necessary to improve judicial protection of the poor in Europe. It shows the necessity of the elaboration of a systematic legal conception clarifying the content and scope of socio-economic guarantees of freedom from poverty protected by the ECHR as well as common standards of their judicial enforcement. At the same time, I advocate for the direct judicial protection of socio-economic rights at the European level. An essential political measure in this sense would be the expansion of the Court’s jurisdiction to the rights enshrined in the European Social Charter and the Revised European Social Charter.
