WEEK 1 INTRODUCTION
Backdrop:
● ECHR was attacked, its legitimacy was at stake
● It got too many cases
● Solution:
○ One single judge formation
■ Controversial:
■ Mistakes can be made
■ No appeal
○ Pilot judgments
○ Better domestic remedies
○ Translation of admissibility criteria
Admissibility criteria:
● Article 34: victim requirement
○ You have to be a direct victim
○ A general problem is not enough
○ In principle, this requirement is taken seriously, but sometimes the Court
puts effectiveness over formality to ensure protection.
■ Hoffmand and Theil: balancing sovereignty with HR protection
○ In Dudgeon v UK: no concrete action but still victim (= the existence of
the legislation was enough!)
● Zakharov v Russia
○ The standard is approached with a certain flexibility
○ Potential victims may fall under Article 34 if:
■ They fall under the scope of the legislation
■ There is no effective national remedy OR:
■ Effective national remedy but potentially at risk due to a
personal situation
● Article 35: exhaustion of local remedies
○ Strict interpretation
■ Sadik v Greece
■ Not just about reaching the highest Court but also about pleading
your human rights issue at national level before going to the
ECtHR.
■ Rationale: protecting sovereignty.
○ Flexible interpretation
, ■ Sheekh v Netherlands: if a case is bound to fail, there is no need
to exhaust local remedies. The remedy has to be effective. If there
is virtually no prospect of success, no need to walk that route.
● No change of success!
■ Aksoy v Turkey:
● If remedies are not effective in general: widespread
practices
● If remedies are not effective because of personal
circumstances; if there is an unreasonable burden on a
specific person, no need to exhaust the remedies. What can
reasonably be expected of someone?
Interim measures:
● When there is an imminent risk of irreparable damage
● Mamatkulov v Turkey: failure to comply with I.M. is a violation of Article 34.
● Aoulmi v France: confirmed the previous judgment.
, WEEK 2 INTERPRETATION TECHNIQUES, POSITIVE OBLIGATIONS AND
MARGIN OF APPRECIATION
Obligations following judgments - see Article 46 ECHR
1. Put an end to the breach
2. Reparation: restore the situation
3. Ensure non-repetition
States can take two measures:
● Individual measures (particular victim)
○ End violation
○ Restore the situation or,
○ Reparation through damages
● General measures (see pilot-judgments)
○ Ensure non-repetition
○ Prevent similar violations in the future
○ May be necessary to address systematic/institutional problems underlying the
violation
○ Sometimes a change of legislation is needed (Hirst v UK)
Just satisfaction:
● Damages have to be claimed
○ Exception: when the lawyer forgets to do so (Nagmetov v Russia)
● When will the Court not grant damages?
○ In case of fault/negligence
○ Case: Khan v UK
Nature of judgments
● Traditionally, judgments are declaratory in nature
● Principle of subsidiarity:
○ Court finds a violation but won’t do anything about it himself
○ Will not order specific remedies. Leaves Member States free to choose.
Implementation and pilot judgments
● Implementation is primarily of political and domestic nature
● It has become increasingly internationalized and judicialized by the ECtHR
○ The Court has started to spell out detailed general measures in declaratory
judgments (quasi-pilot judgments) - in the reasoning
● What is there are many cases about the same problem?
Backdrop:
● ECHR was attacked, its legitimacy was at stake
● It got too many cases
● Solution:
○ One single judge formation
■ Controversial:
■ Mistakes can be made
■ No appeal
○ Pilot judgments
○ Better domestic remedies
○ Translation of admissibility criteria
Admissibility criteria:
● Article 34: victim requirement
○ You have to be a direct victim
○ A general problem is not enough
○ In principle, this requirement is taken seriously, but sometimes the Court
puts effectiveness over formality to ensure protection.
■ Hoffmand and Theil: balancing sovereignty with HR protection
○ In Dudgeon v UK: no concrete action but still victim (= the existence of
the legislation was enough!)
● Zakharov v Russia
○ The standard is approached with a certain flexibility
○ Potential victims may fall under Article 34 if:
■ They fall under the scope of the legislation
■ There is no effective national remedy OR:
■ Effective national remedy but potentially at risk due to a
personal situation
● Article 35: exhaustion of local remedies
○ Strict interpretation
■ Sadik v Greece
■ Not just about reaching the highest Court but also about pleading
your human rights issue at national level before going to the
ECtHR.
■ Rationale: protecting sovereignty.
○ Flexible interpretation
, ■ Sheekh v Netherlands: if a case is bound to fail, there is no need
to exhaust local remedies. The remedy has to be effective. If there
is virtually no prospect of success, no need to walk that route.
● No change of success!
■ Aksoy v Turkey:
● If remedies are not effective in general: widespread
practices
● If remedies are not effective because of personal
circumstances; if there is an unreasonable burden on a
specific person, no need to exhaust the remedies. What can
reasonably be expected of someone?
Interim measures:
● When there is an imminent risk of irreparable damage
● Mamatkulov v Turkey: failure to comply with I.M. is a violation of Article 34.
● Aoulmi v France: confirmed the previous judgment.
, WEEK 2 INTERPRETATION TECHNIQUES, POSITIVE OBLIGATIONS AND
MARGIN OF APPRECIATION
Obligations following judgments - see Article 46 ECHR
1. Put an end to the breach
2. Reparation: restore the situation
3. Ensure non-repetition
States can take two measures:
● Individual measures (particular victim)
○ End violation
○ Restore the situation or,
○ Reparation through damages
● General measures (see pilot-judgments)
○ Ensure non-repetition
○ Prevent similar violations in the future
○ May be necessary to address systematic/institutional problems underlying the
violation
○ Sometimes a change of legislation is needed (Hirst v UK)
Just satisfaction:
● Damages have to be claimed
○ Exception: when the lawyer forgets to do so (Nagmetov v Russia)
● When will the Court not grant damages?
○ In case of fault/negligence
○ Case: Khan v UK
Nature of judgments
● Traditionally, judgments are declaratory in nature
● Principle of subsidiarity:
○ Court finds a violation but won’t do anything about it himself
○ Will not order specific remedies. Leaves Member States free to choose.
Implementation and pilot judgments
● Implementation is primarily of political and domestic nature
● It has become increasingly internationalized and judicialized by the ECtHR
○ The Court has started to spell out detailed general measures in declaratory
judgments (quasi-pilot judgments) - in the reasoning
● What is there are many cases about the same problem?
