Lectures

Question 1

What can the court rule on? Basis?

Answer 1

All matters concerning the interpretation and application of the Convention/Protocols. Art. 32 ECHR

Question 2

What is jurisdiction ratione loci/personae/temporis/materiae?

Answer 2

Loci – States shall secure the rights and freedoms to everyone within their jurisdiction (primarily territorial)
Personae – Applies to only states that ratified the convention
Temporis – States are only answerable for acts/omissions that happened after Convention entered into force.
Materiae – Interpretation of rights and freedoms

Question 3

Methodology of court concerning negative obligations

Answer 3

Negative:
- Does the complaint fall under the scope of the convention?
- Has there been any interference with the right?
- Can it be justified?
o Is it in accordance with the law (basis, accessible, foreseeable)?
o Does it serve a legitimate aim (and proportionate)?
o Is it necessary in a democratic society?

Question 4

Methodology of courts concerning positive obligations

Answer 4

• Fair balance test
  o Does a positive obligation exist?
  o General interest of community v interest of individual
  State should act when the balance is in favor of the individual

OR

‘reasonable interpretation of the right’

• Is there an obligation?
• Has the state complied?

Question 5

What is the principle of effectiveness?

Answer 5

Convention guarantees practical and effective rights and not theoretical ones.
A concrete case is required

Question 6

What is the principle of evolutive interpretation?

Answer 6

ECHR is a living instrument aiming at further realisation

Limited as Court is not a legislator and cannot create new rights

Question 7

What are the 4 different types of interpretation? How do they differ?

Answer 7

1) Grammatical – ordinary meaning of the wording
2) Historical – what has been said before adopting the text
3) Systematic – Convention must be read as a whole and should promote consistency
4) Comparative – Looking for common ground and legal developments

Question 8

What is the MoA? Difference between narrow/wide.

Answer 8

A review method developed by Court. Court recognizes that in certain areas, States can make their own decisions, provided they are in accordance with the law.
Wide - Court assesses whether limitation is clearly disproportionate or applicant has been imposed an excessive burden.
Narrow - Court grants discretion and examines whether the measures are appropriate and necessary

Question 9

How are judgments executed?

Answer 9

Art 41