Search

A response to Rosalind Dixon's Responsive Judicial Review (Oxford University Press 2023) assessing her theory's prospects and caveats in the Romanian constitutional context. The piece analyses recent case law from the Romanian Constitutional Court and highlights three important shortcomings that limit the applicability of Dixon's framework: the tendency toward formalism in constitutional interpretation, an impoverished rights review culture, and the persistent conflictual positioning of the Constitutional Court vis-à-vis other constitutional actors. The article ends by speculating on developments that may yet render responsive judicial review more of a reality in Romanian constitutionalism than present conditions may allow. [ABSTRACT FROM AUTHOR]

This article examines the approach of the European Court of Human Rights (ECtHR) to claims of discriminatory practices linked to armed conflict, as well as the more recent development of overlapping or parallel interstate claims before the International Court of Justice (ICJ) and the interstate procedure of the Committee on the Elimination of Racial Discrimination (CERD), based on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It examines the potential implications of the latter trend for the application and interpretation of non-discrimination norms, and concludes that this should encourage the ECtHR once again towards application and explicit interpretation of Article 14 in armed conflict contexts. Such an approach would recognise the gravity of any discriminatory dimensions of conflict practices; ensure consistency with the ECtHR's own evolving case law on discriminatory violence; and facilitate harmonious interpretation of non-discrimination norms, as well as the ECtHR's autonomous interpretation of the ECHR and participation in judicial dialogue on concepts common to the ECHR and ICERD. [ABSTRACT FROM AUTHOR]

The increase in the number of international judicial bodies has led to different international courts deciding similar issues of international law. There is the real possibility that these international judicial bodies, not subject to the supervision of a common appeal court, may rule differently on similar questions before them. While this fragmentation of decision-making may undermine the coherency and certainty of the international legal system, it may in some cases be in the interests of the international community, including where divergences in decision-making are the result of specialized regimes or where there is progressive development of the law. So that fragmentation is limited to what is beneficial and necessary for the international community, it is essential that international judic ial bodies are in open and structured dialogue with one another. This analysis considers three scenarios of overlapping decision-making, over the course of the lives of two sets of international courts: the International Court of Justice, and the international criminal courts and tribunals. It also considers the recent decision of the International Criminal Court with respect to Palestine and the Court's refusal to weigh in on questions of general international law, in apparent departure from the previous three examples. It is submitted that these examples demonstrate that insufficient attention is given by these international judicial bodies to the issue of judicial dialogue and its importance. This may undermine the legitimacy of the system and introduce the risks of fragmentation without its benefits. [ABSTRACT FROM AUTHOR]

In the juridical discourses the references to the global constitutionalism are multiplying themselves, in particular since the arrival of the Covid 19. This concept, in the middle of construction, appears as a solution as well as a problem, confronted to the development of the globalization and the interaction between the juridical actors. This study is prioritizing the second aspect. The playwright Jean Giraudoux used this formula: «the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth». Beyond the utopias, I’d rather underline three points: the perspective of a new type of oligarchy behind the global constitutionalism; the threats of a combination of the devaluation of the political power and the centrality of the individual; and eventually the discourse to the convergence of the human rights, which hides the presence of a cultural imperialism. To conclude, inside this reflexion about the global constitutionalism, how to consider the European constitutional law: as a role model to follow, or as a model to reject? [ABSTRACT FROM AUTHOR]

This paper discusses the judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union regarding the placing of hyperlinks on the internet. Firstly, the case law of the CJEU in the light of the linkage is analysed. This shows the scope of restrictions created by this judicial authority in the area of copyright. Secondly, the judgment of the ECHR will be cited and analysed as regards the relationship between placing hyperlinks on the internet and freedom of expression. There is a judicial dialogue with the CJEU, which focuses attention on the human rights aspect of hyperlinks. Thirdly, the correlation between the jurisprudence of the CJEU and the ECHR will be analysed, including a functional interpretation. The paper ends with a discussion about the potential of this judicial dialogue for the wider purpose of building an optimal model for European dialogue. [ABSTRACT FROM AUTHOR]

There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings. [ABSTRACT FROM AUTHOR]

In this study, the author describes the dialogue between the International Criminal Tribunal for Rwanda and the Gacaca courts after one of the bloodiest conflicts in the contemporary history of Africa – the 1994 genocide in Rwanda. The purpose of this work is to show how international and internal cooperation can influence the solving of armed conflicts, especially in the process seeking justice for the civilian casualties. By recalling the historical context, the author emphasizes the importance of the juridical basics, which are established immediately after the armed conflicts. Furthermore, this study also shows how Gacaca courts were a new dimension of judicial proceedings in the Rwandan legal system. It analyzes how these courts were able to contribute to successfully prosecuting war criminals. This subject is not widely discussed in the literature and the size limitations necessarily imposed on an article of this nature do not allow for a detailed exploration of the subject here so it is vital that this subject is studied further. [ABSTRACT FROM AUTHOR]

Judicial dialogue in the field of the protection of human rights has its own history and faces new challenges. In this article the author firstly explains the mechanism as such, and then tries to find some constructive conclusions concerning the real impact of this kind of judicial activity. All the considerations are focused mainly on the experiences of the European Court of Human Rights and its influence on the other "partners" involved in the effective protection of the rights and freedoms of individuals. Some impressive examples of the practice in this regard are exposed. Nonetheless, in the author's opinion the visible changes of contemporary sociological conditions, mainly in Europe, have their consequences in the approach of the European courts. Being the main "creators" of human rights standards, they can influence in a tangible way the position of domestic judicial organs. In such a situation an active judicial dialogue (both in its horizontal and vertical dimensions) seems to be even more necessary. [ABSTRACT FROM AUTHOR]

The editors and other authors of the studies contained in this volume have chosen to focus attention on the problem of the broad concept of judicial dialogue, defined as the communication between various judicial authorities. The studies included consider the problem of institutional relations in the field of human rights protection from a national and international perspective. The issue of judicial dialogue in the field of human rights after the civil war in Rwanda is assessed. Next, the issue of the legal responsibility for placing hyperlinks in the context of the judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union in the field of protecting human rights on the internet is raised. Finally, the question of whether private or public legal entities can find direct protection under the Inter-American System of Human Rights is analysed. The academic value of the analytical considerations presented in this volume is very high and this should lead to considerable readers' interest. This is because intellectual considerations of judicial dialogue in the field of human rights protection undoubtedly bring an interesting and significant new dimension not only to the theory but also to the practice of applying the law. [ABSTRACT FROM AUTHOR]

The main objective of this work is to analyse the current judicial guarantees of the right to health. It studies, on the one hand, those systems that enforce this right by relating it to other human rights, such as the European Court of Human Rights or the Inter-American system. On the other hand, systems that recognise specific justiciability for the right to health, such as the constitutional systems in Brazil or Colombia, are also studied. The litigation of the right to health in these countries has been criticised, due to the inequities found when accessing the courts and the high number of cases. In this sense, the last objective is to suggest possible solutions, e.g. enforcing access to justice, increasing the number of collective complaints as well as the measures of inter-institutional dialogue. [ABSTRACT FROM AUTHOR]

The present repertoire gathers a selection of various doctrinal contributions (books, chapters and papers) on the European Court of Human Rights which have been published in the last decade. They are a reflection of some of the challenges that the Court has lately faced, and they tackle issues as its organization, the procedure and access to its jurisdiction, the enforcement of its judgments and their impact, its dialogue with other courts, and some principles or concepts guiding its practice, such as the margin of appreciation, consensus and subsidiarity. [ABSTRACT FROM AUTHOR]

The need to ensure a uniform interpretation and effective application of the large corpus of EU environmental regulation in the jurisdictions of the Member States remains a task of pivotal importance for the Court of Justice of the European Union (CJEU). A quick look at the CURIA database reveals that many judgments are handed down every year to clarify the meaning of EU environmental provisions. It is therefore important to study the proper functioning of the tandem composed of the CJEU and the national courts in this field of EU law. In that sense, this article responds to Bogojević's call 'to draw a grander map of judicial dialogues initiated across various Member States'. More specifically, the topic investigated by this article is how the United Kingdom (UK) courts have followed up on responses received from the CJEU to their preliminary reference requests in the field of EU environmental law, from the UK's accession in 1972 until January 2017. All the cases we have retrieved from the UK show various degrees of willingness to cooperate with the CJEU. This article highlights the existence of three trends: full cooperation, fragmented cooperation and presumed cooperation. [ABSTRACT FROM AUTHOR]

The article contributes a critical analysis of the case law of the Inter-American Court of Human Rights (IACtHR), reviewing the protection of migrants' rights in the Inter-American Human Rights System. Specifically, the article's aim is to scrutinise the possible constraints upon growth as regards the role played by the IACtHR. It examines the main drivers behind the evolution of the case law and the key principles laid down in emblematic cases with a view to answering this question. The article also discusses the articulation of a judicial dialogue between the IACtHR and its European counterpart, which has developed the jurisprudence on both sides. Evidence demonstrates that the IACtHR is being innovative in creating its own authentic judicial dialogue with national constitutional courts. Other regional human rights systems, such as the African system, could learn from this. Finally, the article identifies the success and the pitfalls in the approach taken to protect migrants' rights. [ABSTRACT FROM AUTHOR]

This article shows how the substantive bias at the core of the present socioeconomic constitution of the European Union is directly related to the characterization of economic freedoms (crucially, the right to freedom of establishment of corporations and the free movement of capital) as the key yardstick of European constitutionality. An empirically grounded reconstruction of the way in which the European Court of Justice applies the proportionality principle shows that the Luxembourg judges (1) assign the argumentative benefit to the holders of economic freedoms, (2) construct all other constitutional goods in the semblance of economic freedoms, and (3) use asymmetric proof standards when having to justify the adequacy and necessity of economic freedoms and other constitutional goods. As a result, under the cloth of projecting the way in which national constitutional courts review the constitutionality of legislation to the supranational level, the European Court of Justice has radically altered the substance of European constitutional law. In particular, the right to private property and entrepreneurial freedom (as operationalized through the four economic freedoms and the principle of undistorted competition) have been assigned an abstract and a concrete constitutional weight that places key public policies (social policies, tax policies, regulatory policies) off the realm of what is constitutionally possible. As a result, some of the collective goods at the core of the Democratic and Social Rechtsstaat have become extremely vulnerable. Focusing on the proportionality as practice by the European Court of Justice does not only provide us with insights into the nature and substance of European law, but also contributes to the general theoretical understanding of the principle of proportionality itself, in particular to a more detailed reconstruction of the relevant steps in proportionality review. [ABSTRACT FROM AUTHOR]

This paper surveys the first direct judicial dialogue between the Spanish Constitutional Court and the Court of Justice of the European Union on the European Arrest Warrant and the interpretation of Article 53 of the Charter of Fundamental Rights of the EU when the national level of protection of rights is higher than that provided by a rule of secondary legislation of the Union. It highlights the possible tensions between constitutional supremacy and primacy of European Union law, and the evocation made by the Constitutional Court of its doctrine on rights constitutionally recognized as limits to the European integration contained in the judgment which closes the dialogue between both Courts within the so-called Melloni case. [ABSTRACT FROM AUTHOR]

The Court of Justice of the European Union (CJEU) has played a significant role as a constitutional actor in the European legal space. It has decisively contributed to outline a new multilevel legal order, based on supranationality and with unmistakably federal elements unparalleled in the international community. The CJEU has been, thus, the driving forcé behind the increasing process of European constitutionalisation. In this new European constitutional space a kind of constitutional judicial triangle has been created, which is integrated by the CJEU, the national Constitutional courts and the European Court of Human Rights (ECtHR). In this space, the judicial dialogue among the three vértex of this triangle is a sine qua non condition for a harmonic functioning of the system. In practice, the dialogue between the CJEU and the Constitutional courts has been reasonably solved, although nowadays certain problems pertaining to the control of ultra vires acts of the Union by the domestic Constitutional courts have emerged. The same can be said about the complicated realization of the notion of 'constitutional identity' as a limit to the actions of the Union. On the other hand, the dialogue between the CJEU and the ECtHR has been impacted by the objectionable decisión of the CJEU regarding the EU's accession to the ECHR. [ABSTRACT FROM AUTHOR]

This paper purports to reflect on the complex issues that arise from the fact that both the European Court of Justice and the national constitutional court have the power to adjudicate on fundamental rights and that, therefore, on the basis of the application of different rules -- the Charter of Fundamental Rights of the European Union and the national Constitution -- they can occasionally arrive at different decisions. National courts are more and more aware of this dual avenue to challenge national regulations, through the preliminary reference to the ECJ and through the reference to the Constitutional Court of constitutional doubts with regard to national legislation. In consequence, national Constitutional Courts must accommodate into this new scenario. [ABSTRACT FROM AUTHOR]

Starting from the recognition that European human rights law develops bottom-up through the practice of democratic national authorities, this contribution analyses domestic authorities’ substantive and procedural obligations to ‘secure’ the rights of the European Convention on Human Rights (ECHR), and in particular the extent to which thedynamicelements of these obligations have been consolidated through European Court of Human Rights’ (ECtHR) jurisprudence. To this end, it initially disaggregates the obligations addressing parliaments and domestic courts respectively to respect, protect and fulfil convention rights in light of present-day conditions. It subsequently examines how domestic courts and parliaments should effectively interact to secure ECHR rights in an up-to-date manner. Then, it analyses how the ECtHR ‘communicates’ these obligations to domestic authorities by relying on the principle of subsidiarity/margin of appreciation. Overall, the contribution enhances our understanding of how domestic authorities should secure the rights of the convention in circumstances of change (‘co-develop’ the law of the convention), and how the ECtHR can promote domestic authorities’ engagement with the convention towards this end. [ABSTRACT FROM AUTHOR]

The use of internal and external precedent has been studied in relation to numerous international courts and tribunals. The participation of investment treaty tribunals in judicial dialogues or judicial cross-fertilization, by contrast, has remained underexplored. The present article closes this gap and analyses both the use of internal and external precedent by investment tribunals and the way other courts and tribunals, both international and domestic, engage with investment treaty jurisprudence. We argue that investment tribunals, after having used internal and external precedent to consolidate international investment law as a uniform legal regime and embed it in the fabric of international law, have generated a body of investment treaty jurisprudence that other courts and tribunals are now starting to use as an authoritative source for the determination of rules of general international law. In contributing to the development of general international law, investment treaty tribunals are slowly but steadily moving mainstream, from the periphery of international dispute settlement towards its center. [ABSTRACT FROM AUTHOR]

This article aims to analyze the Inter-American Human Rights System, highlighting its transformative impact on the Latin American context, as well as its increasing empowerment in the region, which is a product of the effectiveness of the judicial dialogue in a multilevel system. Indeed, under this multilevel perspective four strands of judicial dialogue emerge, to be noted in the text. Finally, we seek to identify the main challenges of the system and the potential risks of its reform agenda, arguing that the strengthening of the Inter-American System requires the adoption of measures to strengthen its universality, institutionality, independence, sustainability and effectiveness, for which at the end we highlight seven proposals. [ABSTRACT FROM AUTHOR]

By means of del Río Prada v. Spain judgment, the ECHR Grand Chamber has consolidated its flexible approach regarding the distinction between penalties and measures relating to their execution; the Court has also established clearly that while the States are free to determine their own criminal policy, they must comply with the unconditionally prohibition of retrospective application of the criminal law. In its turn, the Audiencia Nacional has resorted to an expeditious execution procedure of the judgment whose legal foundations are far from clear. Due to the significance of the case, some sectors have given way to the temptation to criticize both the judgment and the Court itself, common attitude also to other countries and that can be explained but not justified on account of the impact that the ECHR decisions may have on especially sensitive areas of national law; however, in the face of a condemnation judgment, the solution is not in discrediting the messenger but in strengthening the dialogue amongst Courts. [ABSTRACT FROM AUTHOR]

This article analyses the position of absent witness evidence under the UK Criminal Justice Act 2003 after significant European and domestic case law on the topic. It argues that flexibility in the hearsay regime under the 2003 Act and a permissive approach by appellate courts has increased the potential for fair trial violations in recent years. Moreover, the UK Supreme Court decision in R v Horncastle preserves domestic courts’ authority to determine the meaning of European rights and selectively defer to Parliament. This area of the law demonstrates the scope that the domestic system retains for divergence from European standards. [ABSTRACT FROM AUTHOR]