Course 9

Question 1

What was the Hatton case?

Answer 1

• Case about the night flights above Heathrow so the British government decides at a point to adopt a regulation that night flights will still be possible during certain hours with limitations and also in certain directions. Ms. Hatton complains about the situation and complains about the violation of article 8 of the European Convention = right to private life: British authorities have not done enough to protect them against the noise.

Question 2

Was there a positive or negative obligation in the Hatton case?

Answer 2

• Unclear:
  
  • Mostly about the positive obligation to protect the applicants against applicants against interferences by other private entities but there is also an aspect of a negative obligations because it’s the government that authorizes these flights and that says how the flights can and should take place.
  • Court does not make this distinction but focus on the fair balance between the rights of the applicants and the general interest = economic interest for the country.

Question 3

What was the reasoning of the judgement of the Chamber?

Answer 3

• Judgement of the Grand Chamber –> the judgement of the chamber is replaced.
• It states: there is a positive obligation for the state to protect the rights of the citizens which means in this case that environmental protection is an important area of governmental action but the government must minimize as far as possible the interference with the article 8 rights of the citizens, of the people who live in the neighborhood of the airport. Minimize as far as possible.
  
  • That means the government should look actively for that solution that protects best the rights of the people.
  • The government must show and convincingly show that it has been searching for the best possible solution.
• And since the government was unable to demonstrate that it had done exactly that, the chamber decided by five votes against two that the government had not fulfilled it’s positive obligation towards these individuals that there had been a violation of article 8.

Question 4

What was the reasoning of the Grand chamber in the Hatton case?

Answer 4

• Losing party can ask for a referral to the grand chamber, there is a panel that decides whether to accept such a request -> here is was accepted and sent to the Grand Chamber.
• Reasoning Grand Chamber:
  
  • No violation of article 8: divided court 12 against 5 but on a totally different reasoning.
  • Breadth of the margin of appreciation: some factors pointing at a wide margin for the domestic authorities and other factors to a narrow margin  court concludes that there is a wide margin.
• Grand Chamber asks: did you search for a fair balance of the different interests involved: not just the economic interest but also that of the citizens? Did you search for a fair balance?
  
  • Court emphasized the quality of the decision-making process and decided than enough research had been done = no fundamental flaws in the procedure = rule making, not individual adjudication.

Question 5

What is the importance of the Hatton case?

Answer 5

• Differece Chamber - Grand Chamber: grand chamber is exclusively based on a certain view of what the margin of appreciation entails = important topic!
• When there is a wide margin: state must choose among various options: And the possibility to choose is not compatible with the idea that the state should look for only one solution. The solution that would be the least harming for individuals. That is not compatible with the idea of a margin. The idea of a possibility of choosing among various options. So that’s a very different point of view adopted by the grand chamber compare to the chamber.
  
  • But still sometimes the solution of the least onerous solution will pop up because in a lot of states, this is what the proportionality principle requires but that is not what the European Convention requires. Court does not impose any solution on the states but checks whether the solution chosen remains within the limits of what is permissible on the European convention = subsidiarity principle.

Question 6

What is the implementation of an international human rights treaty in the domestic legal order?

Answer 6

• As soon as a state ratifies an international human rights treaty and provided that the treaty has entered into force  state takes it up to implement & enforce the rights declared by the treaty.
• Not just a declaration like with the Universal declaration of 1948 without any legal effects.
• Article 1 of ECHR: obligation to secure to certain individuals the rights defined in the convention. Obligation to make sure that these rights are being respected.

Question 7

What is the effect of the treaty in the domestic legal order?

Answer 7

1. Self-executing character
2. “Direct effect” and primacy over domestic law
3. Right to an effective domestic remedy in case of an alleged violation of human rights

Question 8

What is the self-executing character?

Answer 8

• Does the treaty need to be incorporated into domestic legal order by specific legislation or is it self-executing? This does not follow directly from the ECHR: States have an obligation to make sure that the rights are guaranteed but there a various means to make this assurance real.
• Many states: monist system  It means as soon as the treaty is entered into force for the state concerned, it is applicable in the domestic legal order. It is self-executing. No law is needed to state all this rights are applicable. The mere fact that the convention is ratified is sufficient to create the effect that these rights can be invoked in the domestic legal order.
• Some countries: dualist: ratifying the convention is not enough to make sure that the instrument can be used in the domestic legal order: UK = clear distinction between domestic law and international law. UK can be bound at the international level but that does not mean anything at the domestic level. What happened in 1998 was a big change when the British parliament adopted the human rights act. That’s an act that more or less copied all the provisions of the European convention on human rights into a domestic act. The human rights act is the equivalent at the domestic level of what the European convention is at the international level.
  • Suddenly: rights of the ECHR could be used before the British Courts. Initially very open but they became critical over the years of ECHR. Very lively dialogue between the European Court & British Supreme Court.
    
    • British Supreme Court not happy that they are no longer the highest court anymore. That there is a higher level above their own statutes and laws that they adopt.
    • Conservative party wants to abolish the Human Rights Act to change the relationship with the European Convention on Human Rights. Nothing has been stated in any law.

Question 9

What is the direct effect?

Answer 9

• Assume that a treaty = self-executing  what are the effects = direct effect if you invoke the convention before the European Convention?
• This is in fact the question whether or not the European convention a source of precise obligations for public authorities and whether it is the source of precise rights for individuals. Precise rights we could call them subjective rights.
• Distinction between the negative obligations of the state and its positive obligations:
  
  1. Negative obligations: direct effect
  2. Positive obligations: usually states have a very wide margin of appreciation so no direct effect

Question 10

Do negative obligations have direct effect?

Answer 10

• Yes
• Quite clear: anyone can complain before a domestic court on the basis of the ECHR that an interference has gone too far, that it is not respecting the conditions in the convention: either implicit or explicit. So any domestic court can set aside a decision that is incompatible with the state’s negative obligation  usually direct effect.
• This does not mean it is easy for a court to decide if there has been a violation of the negative obligation = still a lot of assessment needed but there are limits and the judge can check whether these limits have been respected or not.

Question 11

Do positive obligations have direct effect?

Answer 11

• Usually, states a very wide margin of appreciation when it comes to positive obligations  court cannot oblige a public authority to take a decision in a specific way: What the court can do is to find that by not doing anything or by not sufficiently doing something, that the public authorities are failing in their execution of their positive obligation. But that is not the same as ‘now we order you to take this measure’.
• Same as with provisions in the national constitution or national laws:
• Very often authorities that have to implement these provisions dispose of a wide discretionary power and the state court/national court will not dictate to the public authorities what they exactly have to do but they can order them to do something or more than they have done until then.

Question 12

What was the Uruganda case?

Answer 12

• Case in the Dutch supreme court: group Uruganda: asked for an order by the Dutch court order addressed the Dutch government so that they would have to take certain measure in order to protect the right of life of individuals. And the Dutch court found that the Dutch government had not done enough about the respect of the right of life. That the Dutch state had ratified climate treaties or certain treaties relating to clean air etc. but that it did not meet the objectives of these treaties. Sor there was a finding that the state had not fulfilled its positive obligation under article 2 of the EUCHR and the court ordered the state to take the necessary measures in order to meet the objectives that it already had agreed upon through other treaties but that is all what the court said.
• It did not say ‘and now you are going to take exactly this measure to reach that goal’, the goal is to be reach within a certain period of time but then it is up to the public authorities to decide how to reach that goal. That is a measure of article 2 in a positive aspect, it does not really have a direct effect. You cannot rely on that article to obtain the enforcement of a very specific obligation by the state. An obligation by the state yes but how to work it out would be for the state authorities.

Question 13

Does the EU convention have primacy over domestic law? Should the convention prevail over conflicting domestic law?

Answer 13

• This is a matter left to national constitutional law and so the national constitutional law could theoretically say that the convention does not have priority over domestic legislation. That where a conflict arises it will be for the legislator to solve it but not for the judge to take the place of the legislator and to set aside a domestic provision and to apply a convention principle.
• Theoretically that is possible but if a state has such a system the risk of situation that are incompatible with the convention and which cannot be solved at the domestic level is of course not to be neglected. A state is in situations where it is much easier to comply with the convention where constitutional law accept that the convention has primacy over domestic law.

Question 14

What is the right to an effecitve domestic remedy in case of an alleged violation of human rights?

Answer 14

• Procedural aspect: right to an effective remedy in case of an alleged violation of fundamental rights of freedom: article 13 ECHR 13 which states that everyone who’s rights under the convention has been violated has the right to an effective remedy. A remedy before a national authority.
• Clear illustration: primary responsibility of the domestic authorities and the subsidiary role of the EU Convention mechanism  first the domestic authorities have to set things straight.
• Article 13 is toppled by article 26: the conditions for admissibility of a complaint before the ECHR:
  • Domestic remedies have to be exhausted first before you can go to Strasbourg  2 sides of a coin: You have to exhaust domestic remedies but on the other hand the states must make the domestic remedies available.

Question 15

When can you rely on article 13? When do you have the right to bring a complaint before a domestic authority?

Answer 15

• When can you rely on article 13? When do you have the right to bring a complaint before a domestic authority? Is it only when your right has been violated? Should you first demonstrate that your rights have been violated before going to court?
• Well no, because it is up to the court to decide whether your rights have been violated  necessary but also sufficient that you argue that your rights as protected under the convention have been violated and that in arguing this violation that you have an arguable complaint. Not something manifestly unreasonable. There must be something within the argument. When that is the case, article 13 gives you the right to a remedy before a domestic authority

Question 16

What is “effective remedy”?

Answer 16

• Effective remedy: the remedy as determined by the national authorities/legislator must give the possibility to an independent body to deal with the substance of the complaint, listen what the complaint is and then examine it. Secondly where a violation is found that body should be able to offer appropriate relief.
• Example: if you complain about a decision taken by a local authority to impose a curfew after 10 o’ clock:
  • Violation of right to move freely within the country: article of protocol number 4/7.
  • Article 13 would then oblige that administrative court to examine whether or not the complaint is well found whether the convent has been respected or violated and if the court comes to the conclusion that there is been a violation it must offer an appropriate relief. In this case it would be annulling/quashing the decision that was challenged. That is a perfect form of relief, then it is gone.

Question 17

What could relief also entail?

Answer 17

• Relief could also mean in other situation, compensation for the harm that has been done. There is no fixed rule about what the appropriate relief is, it depends on the circumstances. And states enjoy some discretion in how to comply with this obligation to offer individuals an effective remedy. Discretion:
  • Instrument upon which an individual can base his or her complain: can be the convention but could also be a domestic law that is guaranteeing the same rights as in the European Convention (UK).
  • Also up to the domestic authorities to decide what kind of body can be seized to which a complaint can be brought. Most of the time it is a judicial body, but it could also be another body provided that it is an independent one. In certain countries you have for specific human rights issues sometimes very powerful commission or bodies that might be sufficient to comply with the article 13.

Question 18

What is the value of judgements that find a violation of the EU convention?

Answer 18

• Distinction:
  
  1. Execution of a judgement of the EU Court
  2. Interpretation of the convention given by the EU court in its judgement.
• Not the same thing but very related to each other.
• = Effect of decisions adopted by international HR monitoring bodies in the domestic legal order.

Question 19

What is the execution of a judgement of the EU court?

Answer 19

• Article 46: High Contracting parties undertake to abide by the final judgements of the court in any case to which they are parties = a judgement is binding upon the respondent state, like a judgement of a domestic court.
  
  • This is a big novelty: European Court as a judicial body can also hand down binding judgements.
• This is an unequivocal legal obligation without exception to the obligation to execute a judgement of the European Court of HR: the government may be dissatisfied with a judgement but once that it has been handed down = no discussion possible anymore, regardless if the court was right or wrong.
  • The judgement has to be executed, even if the ECHR changes its case law.

Question 20

What can the state choose, which freedom does it have?

Answer 20

• But state has the freedom to choose the means how to execute the judgement, but they cannot choose if they are going to execute it. Understandable because if one would allow states to relativize the binding force of a judgement of the ECHR, that would undermine the effectiveness of the whole convention system.
  
  • Whenever a state is moving in the direction of not fully respecting the judgement of the EU Court = alarm with Strasbourg, certainly with the committee of ministers.

Question 21

What is the worrisome development with Russia?

Answer 21

• Russian government asked the opinion of the Russian constitutional court about the relationship between judgements of the EU court and the Russian constitution. What If a judgement of the EU court finds a violation in something that is regulated by the Russian constitution?
  • Russian Court: “You cannot execute the judgement of the EU court if at the same time you are going to violate the Russian constitution.”
  • Adopted an amendment to their constitution in 2015 grating the constitutional court the power to decide whether or not they were going to execute the judgement of the ECHR based on the fact whether or not it violated the Russian constitution.
    
    • Mechanism: EU Court hands down a judgement and then the constitutional court can say that the execution will violate the constitution and that Russia is not obliged to execute.
• Now that is the first time that in a national statue/law there is such a clear prohibition of executing a judgement of the European court if certain conditions are met.

Question 22

What were the 3 occasions where the Russian authorities referred a case to the Russian constitutional court?

Answer 22

1. Court case 2016: voting rights for prisoners. Russian constitutional states that prisoners do not have voting rights. ECHR says that this is a too broad restriction that violates the electoral rights of prisoners. Russian court says you cannot execute because that would be in breach of Russian constitution but maybe other possibilities: system of colonies. People are deprived of their liberty = confinement where convicted persons have to perform community work, but they are allowed to vote. Result: not an absolute restriction for anyone who is serving a sentence: the committee of ministers in controlling the execution the judgement of the ECHR found that this was sufficient.
2. Yukos case: company managed by people opposed to president Putin: Russian authorities brought criminal & tax proceedings. ECHR: extremely high penalties for tax irregularities constituted a violation of the right of property under the EU convention (2 billion).
   
   • The company Yukos does not exist anymore and the ECHR said: you have to pay compensation to the former management and shareholders but Russian government refused and the Russian constitutional court said: you cannot execute because that would be against fairness of justice: you cannot give advantages to taxpayers who circumvent the whole Russian tax system = unfair for other taxpayers.
   • The Yukos judgement is still not executed: unclear how it is going to be solved because the Russian authorities are really not willing to pay the enormous amount.

Question 23

What should we conclude from those two cases in Russia?

Answer 23

• How the systems work in Russia because sometimes they do intervene but did not completely close to door: at least partially comply with the judgement of the EU court of human rights. And then it depends on whether the other authorities are willing to take advantage of that possibility or not.
• At first: very dangerous legislation but maybe not as much as it looks like. More of a political signal from Russia to the Council of Europe that after these 3 cases is not necessary to use anymore?

Question 24

What is the obligation to execute judgements of the EU court is an obligation that rests on all organs of the state concerned?

Answer 24

• The obligation to execute judgements of the EU Court is an obligation that rests on all organs of the state concerned: The state has to execute the judgement and the state is all state bodies (the legislator, government, local authorities and the court) all within their own competence.
• Often: expectation that the legislator will need to make an amendment to the legislation. But this takes quite some time so sometimes the court might step in on the basis of the convention itself = self-executing convention to create a situation that is compatible with the EU convention.

Question 25

What was the case Marx v. Belgium?

Answer 25

• Marx’s vs. Belgium: status of so-called illegitimate children and the obligation for the Belgian state to provide for a legal recognition of the family relationship between the parents, mother, of a child born out of wedlock.
• Judgement handed down in 1979: execution would need a change in the civil code and that takes a vast reform which took some years: many claims brought by illegitimate children claiming their share of the heritage of their parents.
• Belgian judiciary really divided, as well as the Court of Cassation: this is a positive obligation but how can we order the legislator to act in a given way because there are many ways to execute this judgement. The results was: we can’t do anything.
  
  • Article 8 in positive aspect: it obliges the state to take positive measure but it does not have any direct effect.
• Court of Cassation: “it follows from the judgement of ECHR that they must be treated equally and a judge can do that without the law being changed: convention has primacy over domestic law. When you get the claim = just treat them all equally.

Question 26

What is the case Vermeire v. Belgium?

Answer 26

• 1991:
• EU Court: of course, it is for the legislator to take action but in the meantime, the court should do their best to draw all the conclusions of the judgement of the EU court. Again a violation of article 8 because the Court of Cassation was too timid and this cannot be justified.

Question 27

Do judgements have direct effects in legal order?

Answer 27

• Judgements of the EU court do not have direct effects in the legal order: when the EU court of human rights finds a violation = always or mostly the result of a decision made at the domestic law, administrative act, a judgement,…
• Finding of a violation by ECHR does not mean that the law does not exist anymore, there is no quashing of any domestic act. That will have to be done by the competent domestic authorities in the execution of the judgement of the EU court. So long as the domestic act exist it will continue to have its effects.

Question 28

What are the 2 sorts of obligations of a state to execute the judgement?

Answer 28

There are 2 sorts of obligations: has been gradually developed within the case law of EU court.

1. What is the obligation vis-à-vis the applicant?
2. What is the obligation of a more general nature?

Question 29

What is the obligaiton vis-à-vis the applicant?

Answer 29

• Say that the EU court finds that the right of a given individual have been violated = right to fair trial has not been respected. That judgement will still remain, the domestic judgement remains until quashed. The conviction remains but the EU court finds that there is been a violation. What is then the obligation for the state? There is a double obligation.
  1. The violation is still continuing = it should be put to an end.
  2. The state is obliged to make reparation for the consequences of the violation. To restore the situation as it existed before the breach of the convention:

Question 30

What are the situations where the state has to make reparation for the consequences of the violation?

Answer 30

• Eg. State has unlawfully expropriated a person = violation of the right to property. Restoration would mean that the property is returned to the owner = not always possible because the place that has been expropriated = a university has been built.
• Eg. Complicated situation where the EU court has found the violation of right of one individual while at the domestic level that individual was involved in a conflict with another individual: conflict between 2 parents about custody over a child and the rights of the father have been violated in the domestic proceedings. That will not necessarily mean that the father is going to obtain the same on the domestic level as before the judgement of the EU court. Because there is also the rights of the other party but the domestic court has to take into account what the EU court decided.
• Important: it is not always a guarantee that when you obtain a judgement in Strasbourg in your favor knowing that other private individuals with their own rights are also involved in the domestic proceedings that you are going to get a different decision at the domestic level.

Question 31

What is the second point about the obligation vis-à-vis?

Answer 31

• The state is free to choose the means to execute the judgement of the EU court:
  • Often many possibilities and the EU court will not be able to indicate what would be necessary to execute the judgements.
  • In very exceptional cases: the EU court can state that there is only 1 solution possible.

Question 32

What was the Case Asanitze?

Answer 32

• Case: Asanitze: Georgia was ordered to immediately release because the detention was arbitrary = no ground that could justify the detention. In other cases: the EU court did the same but it took months or years before the individual was released  court has become much more hesitant because it is not good for its own authority when its judgements are not executed.

Question 33

What is the re-opening of domestic proceedings?

Answer 33

• 2000: Committee of ministers which controls the execution of judgements found that in a lot of cases it is needed that the domestic proceedings can be reopened after a judgement finds a violation of the European Convention.
  
  • Eg. Someone who is convicted after the proceedings were not fair = needs a new trial.
• But this does not automatically follow from the judgement of the European court and this would require legislation that allows for a rehearing of a case, notwithstanding the existence of a final judgement at the domestic level.
• Recommendation of 2000: Committee of ministers: encouraged States to introduce the possibility of reopening of domestic proceedings; criminal proceedings.
  
  • Limited to criminal proceedings because that is the only one where there is always only the relationship between individual and state authorities and not about legislation between 2 private individuals who both have their own fundamental rights.

Question 34

Have many states followed that recommendation?

Answer 34

• Belgium: possibility, not obligation, that finished criminal proceedings will be reopened via a procedure before the Court of Cassation. It’s the Court of Cassation that may receive a request and, having examined the request and examined whether certain conditions are fulfilled, it can quash a decision that has been taken before and then order a reopening of the proceedings, perhaps starting with it owns proceedings. And that has happened in a few cases where the Court indeed came to a different opinion than the first time, having of course the benefit of the judgement of the European Court of Human Rights.

Question 35

What is the financial compensation?

Answer 35

• Financial compensation: where there is no restoration possible: convention itself makes an exception: Article 41:
  • “Just satisfaction” = financial compensation: lots of caselaw.
  • In every case where the Court finds a violation whether there should be ‘just satisfaction’ for pecuniary and non-pecuniary damage.
    
    • In almost all cases: non-pecuniary damage  just satisfaction.
    • Much more doubtful for pecuniary damage.
  • Pecuniary damage also includes all the costs from the lawyers and procedure. All reasonable costs and expenses must be reimbursed by the respondent State and that applies for instance to the lawyer’s fees. Reasonable (!) costs and fees. Usually the European Court does not go so far as to let the government pay the whole bill and reduces it to what it considers to be a reasonable amount.

Question 36

What are the obligations of a more general nature?

Answer 36

• There are also obligations of a more general nature. These are obligations to make sure that similar violations as found by the European Court will not occur anymore in the future. A general prevention of similar violations in the future. And that implies very often general measures, legislative measures, administrative measures, perhaps also changes in the case law.
• Every time there is a judgement of ECHR: domestic authority asks the question what they really need to do?
  • State has freedom of choice how to execute: as long as the goal is reached that the same violation will not occur again.
  • A lot of states were saying to the Committee of ministers: which is controlling the execution of judgements: “we do not think that is necessary”. Committee: “we think it is quite clear what you have to do and we are not going to be satisfied until you change the law in such way or another way.

Question 37

What was the resolution by the committee of ministers in 2004?

Answer 37

• It invited the European Court to indicate in judgements where a systemic problem was at the basis of the violation (so not an individual incident), to indicate the source of the problem:
• Quite a remarkable request: the ECHR has to indicate what kind of measures to be taken to address that general systemic problem.
• European Court: adopted/created the “Pilot Judgement Procedure”.

Question 38

What is the Broniowski case?

Answer 38

• Broniowski Case: first care where the Court explains what it would consider to be a pilot judgement and the consequences:
• Broniowski: unfulfilled commitment by the Polish State to compensate a large part of the Polish population that had lost land after WWII: people had a right to compensation but the Polish state did not offer any financial compensation = violation of the property rights –> general problem because there were 80.000 cases pending before the domestic courts = pilot judgement.
  
  • ECHR indicates where the general problem lies: this general problem of nonfulfillment of this commitment in Polish legislation. Obligation under the ECHR to find a solution and because there are so many applicants: we are going to freeze all the other applications and put them in the freezer for 2 years: find a solution in 2 years that will also apply to the other applicants = advantage of the pilot judgement procedure for governments, because they get some time.
  • Poland found a solution and all the pending cases were scrapped.
• Pilot judgement procedure is a procedure that is quite rare, not applied that often: rather exceptional.

Question 39

What was the case WD v. Belgium?

Answer 39

• WD vs. Belgium: only pilot judgement against Belgium: detention of people who had committed a criminal offence but who had mental disorders: various violations found be ECHR:
• Obligation to offer medical treatment so Belgian authority had 2 years to remedy the situation. The Belgian authorities immediately understood that something had been done and they are taking measures in good faith to repair the situation. That is about pilot judgements.

Question 40

What is the supervision of the execution of judgements of the European Court?

Answer 40

• Most important: Supervision by the Committee of ministers: art. 46, §2 ECHR: “the final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”:
• Shortly after a judgement of the ECHR has been handed down, delegates of the ministers, ambassadors of the 47 MS who are permanently posted in Strasbourg: found a violation of human rights.
• They ask the government to submit an action plan on how they are planning to execute the judgement and then there is some discussion and if the committee is satisfied: it adopts a resolution which ends with a strange sentence:
  
  • After examining all the documents, its task under art. 46, §2 ECHR has come to an end. The executions is considered satisfactory by the Committee of Ministers but it does not have weapons to force governments to execute the judgement:
    
    • Only system of dialogue and peer pressure, sometimes naming and shaming.
  • It can take years before there is even a minimal execution of the judgement. Sometimes the committee accepts this.

Question 41

What was the Hirst v. UK case?

Answer 41

• Hirst Case v. UK: excluding all prisoners from voting rights is against their electoral rights. Such a blanket ban was disproportionate, but the British parliament refused to comply with that judgement:
  • British parliament adopted a resolution that they would not be executing the judgement.
  • Adopted instead an administrative regulation, because otherwise it would never pass by the parliament. Administrative regulation which allows more people to get temporary release from prison for good conduct and not really control them  so they can vote while they are out of the prison.
  • Committee of ministers: this is enough: you have shown that you want to execute the judgement and we accept that the blanket ban has disappeared.

Question 42

What is the infringement procedure?

Answer 42

• New method put in motion by the Committee of Ministers in 2017 in the case Mammadov v. Azerbaijan: art. 46, §3-5:
• If a state refuses to take measure which the Committee of Ministers thinks are necessary: the committee of ministers can refer the case back to the ECHR and decide whether or not its judgement has been executed: infringement of art. 5 ECHR: deprivations of liberty.

Question 43

What was the case of Mr. Mammadov?

Answer 43

• Mr. Mammadov was an opposition leader that had been jailed in preventive detention based on nothing, no reasonable suspicion: violation & abuse of power by the state (art. 18 ECHR).
• But they did not want to release him from prison and in the meantime they convict him on the merits but still no reasonable suspicion here.
• But while the case was pending: 2 things happened:
  
  • Authorities decided that Mr. Mammadov could be provisionally released: he is no longer in prison but he was still convicted and when he does something wrong, he can be immediately jailed back.
  • Supreme Court in Azerbaijan: second step: reducing the sentence and find that he served his whole sentence so no conditional release anymore but he was still convicted. The basis had not been taken away at the domestic level.
• Supreme Court later quashed the conviction and even awarded compensation for the unlawful arrest of Mr. Mammadov which allowed the Committee of Ministers in September of this year to conclude the case and say “our examination is now closed. At least in so far as the individual measures are concerned”.

Question 44

What is the authority of the European Court’s interpretation?

Answer 44

• Judgement of the ECHR has effects for all 47 States of the Council of Europe. The interpretation, the principles = binding for all States unless they disagree –> European Court accepts that a sort of judicial dialogue is put up between a domestic Supreme court and the European court. If a domestic (supreme) court does not agree with the interpretation given by the European Court, it can take the risk of creating a new violation of the Convention by deciding in another way and then hoping that the applicant will bring the case before the European Court, thus giving the European Court the possibility of reviewing its own case law.
• And on a few occasions the European Court has indeed come back from its initial position and changed its case law.
  
  • Protocol no. 16: possibility of an advisory opinion, at least for Supreme Courts of States that have ratified Protocol 16. That’s another way, a much more direct way for a supreme court to start a judicial dialogue with the European Court.