How Should the European Court of Human Rights Remedy Violations of Article 18 echr? The Case for Remedial Realignment
In: European Convention on Human Rights Law Review, TheSearch for other papers by Joseph Finnerty in
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Abstract
This article assesses whether the European Court of Human Right’s (Court) remedial reasoning in Article 18 European Convention on Human Rights (Convention) judgments coheres with the Court’s merits-based reasoning finding a violation of this particular provision. Article 18 violations have come to highlight structural problems in state parties, most notably complicity from domestic judiciaries and/or state prosecutors in state efforts to restrict Convention rights for anti-democratic ulterior purposes. The article finds that this substantive feature of Article 18 violations does not generally extend to the Court’s approach to formulating remedies and that the Article 18 violation judgments evidence the same remedial oversight generally present in the Court’s broader case law. The article argues, however, that the Court’s remedial approach in Article 18 violation judgments should be highly prescriptive and specific in respect of both individual and general measures on account of the reality that Article 18 serves both individual and constitutional justice and engages the positive dimension of subsidiarity.
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| All Time | Past 365 days | Past 30 Days | |
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How Should the European Court of Human Rights Remedy Violations of Article 18 echr? The Case for Remedial Realignment
In: European Convention on Human Rights Law Review, TheSearch for other papers by Joseph Finnerty in
Current site
Google Scholar
PubMed
Abstract
This article assesses whether the European Court of Human Right’s (Court) remedial reasoning in Article 18 European Convention on Human Rights (Convention) judgments coheres with the Court’s merits-based reasoning finding a violation of this particular provision. Article 18 violations have come to highlight structural problems in state parties, most notably complicity from domestic judiciaries and/or state prosecutors in state efforts to restrict Convention rights for anti-democratic ulterior purposes. The article finds that this substantive feature of Article 18 violations does not generally extend to the Court’s approach to formulating remedies and that the Article 18 violation judgments evidence the same remedial oversight generally present in the Court’s broader case law. The article argues, however, that the Court’s remedial approach in Article 18 violation judgments should be highly prescriptive and specific in respect of both individual and general measures on account of the reality that Article 18 serves both individual and constitutional justice and engages the positive dimension of subsidiarity.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 365 | 365 | 53 |
| Full Text Views | 43 | 43 | 4 |
| PDF Views & Downloads | 148 | 148 | 7 |
