anja seibert-fohr and mark villiger (eds.)

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Anja Seibert-Fohr and Mark Villiger (eds.)

Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law 2

Nomos

Judgments of The European Court of Human Rights – Effects and Implementation

http://dx.doi.org/10.5771/9783845259345_1



Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

edited by Prof. Dr. Burkhard Hess

Volume 2

BUT_Seibert Fohr_1869-6.indd 2 12.11.14 11:01

http://dx.doi.org/10.5771/9783845259345_1



Prof. Dr. Anja Seibert-Fohr and Prof. Dr. Mark E. Villiger (eds.)

Judgments of the European Court of Human Rights – Effects and Implementation

Nomos


http://dx.doi.org/10.5771/9783845259345_1



© Titelbild: Council of Europe Credits

Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at http://dnb.d-nb.de

ISBN: HB (Nomos) 978-3-8487-1869-6 ePDF (Nomos) 978-3-8452-5934-5

British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library.

ISBN: HB (Ashgate): 978-1-4724-5975-6 ePDF (Ashgate): 978-1-4724-5976-3 ePub (Ashgate): 978-1-4724-5977-0

Library of Congress Cataloging-in-Publication DataJudgments of the European Court of Human Rights – effects and implementation / edited by Anja Seibert-Fohr and Mark E. Villiger. pages cm Includes bibliographical references and index. ISBN 978-1-4724-5975-6 (hardback : alk. paper) -- ISBN 978-1-4724-5976-3 (ebook) -- ISBN 978-1-4724-5977-0 (epub) 1. European Court of Human Rights--Congresses. 2. International human rights courts--Europe--Congresses. 3. International and municipal law--Europe--Congresses. 4. Jurisdiction (International law)--Congresses. 5. Judicial assistance--Europe--Congresses. I. Seibert-Fohr, Anja, editor. II. Villiger, Mark Eugen, editor. KJC5138.J83 2015 342.2408'50269--dc23 2014043798

1. Edition 2014© Nomos Verlagsgesellschaft, Baden-Baden, Germany 2014. Printed and bound in Germany.

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http://dx.doi.org/10.5771/9783845259345_1



Foreword

In September 2012, the Max Planck Institute for International, European andRegulatory Procedural Law took up its work in Luxembourg. Since Septem-ber 2014, the Institute comprises two departments: for European proceduralLaw and comparative civil procedure and for dispute resolution in interna-tional law. One of the Institute’s main research fields relates to dispute res-olution and proceedings before international courts and tribunals. Therefore,the Institute is pleased that the second volume of its books series addressesthe effect and implementation of the judgments of the European Court ofHuman Rights. This topic is of great importance, not only for the effective-ness of the system of the European Convention on Human Rights, but alsofor the efficiency of international courts and tribunals in general. The Stras-burg Court has developed innovative practices and the Court’s awarenessfor the implementation of its judgments is outstanding and should be takenas a model by other international institutions.

This book is the second publication of the book series of the Max PlanckInstitute Luxembourg for International, European and Regulatory Procedu-ral Law which comprises books on research performed by the Institute andits collaborators as well as studies on dispute resolution which have a strongaffiliation with the research profile of the Institute. When Professor Seibert-Fohr and Professor Villiger proposed to publish the papers of the Göttingenconference of 2013 in the book series of the Institute, I immediately agreed.Today, I would like to express my gratitude to the editors and the contributorsof the volume, but also to the collaborators of the Max Planck Institute Lux-embourg, Edith Wagner and Brian Alexander McCafferty for assisting theeditors in the publication process.

Luxembourg, 22 October 2014 Burkhard Hess

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Preface

In recent years the effects and the implementation of judgments of the Euro-pean Court of Human Rights have attracted increasing interest among prac-titioners and academics alike. The more the Court deals with cases whichare relevant not only for the individual applicant but which also arise due tostructural defects of States’ legislation, the more the domestic legal order atlarge is implicated and questions about the effects of the Court’s judgmentsarise. This leads to the following examination: Can the Court play a role inthe implementation of its holdings at all? How far should the Court go inmanaging the effects of its own jurisprudence?

These are only two of the issues which we began to discuss some timeago. What started as an informal academic interchange between us, over timebecame a broader undertaking leading to an international conference atGöttingen University in September 2013. The conference discussed and triedto devise future strategies to facilitate the dialogue between the EuropeanCourt of Human Rights and national stakeholders. With the most distin-guished experts among the speakers of the conference, a high-level transna-tional dialogue ensued. Each panel was composed of a judge of the EuropeanCourt of Human Rights, a judge from a domestic Constitutional or SupremeCourt, an experienced practitioner and a renowned academic, the ensembleof which represented different stakeholders and various European jurisdic-tions. We are genuinely and sincerely indebted to Dean Spielmann, thePresident of the European Court of Human Rights, for his inspiring keynotespeech, our speakers and panel chairs for their intriguing contributions aswell as to the Fritz Thyssen Foundation for the generous funding of theconference. The staff of the Göttingen Institute for International Law andEuropean Law and the Georg August University were of great help in or-ganizing this event. Most of all we would like to express our gratitude toTorsten Stirner for his dedicated research assistance, and to him, ChristianJelinsky and Florina Nessmann for their highly efficient editing assistance.Finally, we are grateful to Professor Burkhard Hess and his research assistantEdith Wagner of the Max Planck Institute Luxembourg for International,European and Regulatory Procedural Law for publishing this volume in theInstitute’s newly established series “Studies on International, European andRegulatory Procedural Law”.

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Our dialogue on the effects and implementation of the European Court ofHuman Rights’ jurisprudence merely started at the Göttingen conference.To open it to a wide audience and to engage all those interested in this un-dertaking we are publishing the conference presentations in this edited vol-ume. It is our sincere hope to stimulate further debate on these issues so thatthe protection of human rights in Europe can further be enhanced.

Göttingen and Strasbourg,July 2014

Anja Seibert-Fohr and Mark E. Villiger

Preface

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Contents

IntroductionI.

Current Challenges in European Multilevel Human Rights Protection 13Anja Seibert-Fohr & Mark E. Villiger

Keynote Address 25Dean Spielmann

Binding Effects and Declaratory Nature of ECtHRJudgments

II.

Binding Effect and Declaratory Nature of the Judgments of theEuropean Court of Human Rights: An Overview 33Mark E. Villiger

Prescriptive Orders in the Operative Provisions of Judgments by theEuropean Court of Human Rights: Beyond res judicanda? 39Hans-Joachim Cremer

The Role of the Legislative Branch in the Implementation of theJudgments of the European Court of Human Rights 59Almut Wittling-Vogel

Award of DamagesIII.

Can’t Get Just Satisfaction 75Julia Laffranque

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Is There a Need to Advance the Jurisprudence of the European Courtof Human Rights with Regard to the Award of Damages? 115Elisabeth Lambert Abdelgawad

France and the Award of Damages: The Payment of Just Satisfactionand Costs and Expenses in France 137Michel Puéchavy

SubsidiarityIV.

The Constellation of Global and National Courts: JurisdictionalRedundancy and Interchange 151Sabino Cassese

Subsidiarity in the Control of Decisions Based on Proportionality: AnAnalysis of the Basis of the Implementation of ECtHR Judgments intoGerman Law 165Angelika Nußberger

Are Human Rights Undemocratic? 187John Laws

Subsidiarity and the Brighton Declaration 193Derek Walton

The Role of National Courts in the Implementation ofECtHR Judgments

V.

The Struggle by the German Courts and Legislature to Transpose theStrasbourg Case Law on Preventive Detention into German Law 207Thomas Giegerich

Contents

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How a National Judge Implements Judgments of the Strasbourg Court 237Jacek Chlebny

International Law in the Recent Jurisprudence of the HungarianConstitutional Court: Opening of a New Tendency? 251Péter Kovács

The Future Role of the ECtHR and National Courts inImplementation

VI.

From Implementation to Translation: Applying the ECtHR Judgmentsin the Domestic Legal Orders 267Andreas Paulus

The Role of the European Court of Human Rights in the Execution ofits own Judgments: Reflections on Article 46 ECHR 285Linos-Alexander Sicilianos

List of contributors 317

Contents

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http://dx.doi.org/10.5771/9783845259345_1

anja seibert-fohr and mark villiger (eds.)

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