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26 results

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  • Procedural Rationality Review after Animal Defenders International: A Constructively Critical Approach

  • Patricia Popelier
  • Journal:
    European Constitutional Law Review / Volume 15 / Issue 2 / June 2019
    Published online by Cambridge University Press:
    20 June 2019, pp. 272-293
    • Article
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  • Procedural rationality review – Quality of law-making – Fundamental rights – Relation to margin of appreciation – Guidelines to avoid the use of double standards

  • Foreword

  • Josephine De Jaegere
  • Book:
    Judicial Review and Strategic Behaviour
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    03 May 2019, pp v-vi

  • Summary

    This is a book on the Belgian Constitutional Court and the dynamics of its judicial decision-making. It is an empirical study of the judgments rendered by this Court, revealing the strategic considerations at play, and as such is inextricably linked to the specific context of the Belgian political system.

    Yet this book is so much more, and is of interest beyond Belgian borders. This is due to its contribution to more general debates in the two disciplines that it, very proficiently, combines: legal scholarship and empirical legal studies. The global value of this book – beyond the insights it offers to observers of the Belgian legal system – is therefore threefold.

    First, the book contributes to the ongoing legal debate on constitutional review and the counter-majoritarian difficulty. To this end, the author views constitutional courts as deliberative institutions which provide a forum for deliberation between governments and stakeholders. In this way, it also contributes to the debate on how constitutional review is best shaped, pointing out the inherent qualities of abstract review by centralised courts from the perspective of deliberative democracy. At the same time, jurisdictions contemplating the introduction of a constitutional court can learn from this book which aspects of constitutional engineering should best be taken into account. Overall, the author is very clear in revealing how the Constitutional Court goes about making its judgments acceptable to the parties, politicians and the wider public, and how this is reflected in judicial reasoning.

    Second, the book constitutes a contribution to empirical legal studies. In this discipline, much research is devoted to the factors that determine the outcome of judicial decisions. Whilst these types of studies are more commonplace in the US, this constitutes a germinal approach in Europe. In these studies, political and strategic factors have been the centre of attention, but the legal factor is often carelessly set aside. It has even been held that judicial reasoning serves as a justification ex post to hide what is actually going on. One reason is that legal factors are difficult to measure; another reason is that empirical scientists are often not familiar with legal reasoning and how it is intertwined with politics. In contrast to preconceptions in empirical science, political and strategic factors do not necessarily rule out the legal variable; the author, with her legal background, is well aware of that.

Criticism of the European Court of Human Rights
  • Shifting the Convention System: Counter-dynamics at the National and EU Level
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016
  • For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. It also assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. The book is topical and innovative, as these questions have so far remained largely unexplored, especially cross-nationally.Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU.With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Banczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majercík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander.

  • Subsidiarity Post-Brighton: Procedural Rationality as Answer?

  • PATRICIA POPELIER, CATHERINE VAN DE HEYNING
  • Journal:
    Leiden Journal of International Law / Volume 30 / Issue 1 / March 2017
    Published online by Cambridge University Press:
    13 December 2016, pp. 5-23

  • During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.

  • Chapter 1 - Introduction: Purpose and Structure, Categorisation of States and Hypotheses

  • from PART I - INTRODUCTORY
    • By Patricia Popelier, Professor of Constitutional Law at the University of Antwerp and vice-dean for research at the law faculty, Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp, Koen Lemmens, PhD from the European University Institute (Fiesole, Italy) and is Associate Professor of Public Law at KU Leuven (Belgium)
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 3-22

  • Summary

    PURPOSE OF THE EDITED VOLUME

    For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. The most severe criticism has been voiced in the UK, where ‘charges against the Court … over the past two years have been unprecedented’. Also voices outside the UK, however, have subscribed to these views. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. This is exactly what the Strasbourg Court was facing within the reform talks leading up to the Brighton Conference under the UK Chairmanship of the Committee of Ministers of the Council of Europe. Ultimately, however, the Brighton Declaration advanced for the most part a technical reform. It is therefore unlikely that the Brighton Declaration and the ensuing Protocol No 15 will be able to tone down opponents of an activist European Court. The Court will thus very carefully need to maintain the difficult balance between human rights protection and respect for national sovereignty.

    The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. Secondly, the volume assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. These questions have so far remained largely unexplored, especially cross-nationally. Therefore, the focus is not solely put on countries that are known to have highly critical voices and that, particularly in the case of the UK, have been heavily documented. Rather, we aim to evaluate whether a change in dynamics is a pan-European reality or merely limited to a few countries.

    For this reason, our coverage is wide, compromising fifteen Contracting Parties and the EU, as a future Contracting Party. Every in-depth report is based on the same structured questionnaire, which can be found in the annex. The authors also followed the same chapter template which coincides with the questionnaire, as to encourage easy comparison for the reader.

  • Annex 1 - Questionnaire

  • from APPENDIX
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 557-562

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

  • To what extent is there criticism of the European Court of Human Rights regarding its interpretation of the Convention, its functioning and its legitimacy (a) in the media, (b) in academia, (c) in the political world and (d) in the judiciary?

  • Is the lack or presence of criticism linked to the status of the Convention and the ECtHR judgments in the national legal system? Why?

  • Has there been a recent surge in criticism? If so, what sparked this?

  • Is this criticism widespread and/or permanently present or only sporadic and/or temporary? Why?

  • Is this criticism aimed at specific judgments or is it more systemic, namely aimed at the general mechanisms of interpretation, general functioning or overall legitimacy of the European Court of Human Rights?

  • If there is a significant difference in the amount and nature of criticism of the European Court of Human Rights in the different fields (media, academia, politics and judiciary), does this cause any specific tensions at the national level? Has this had any effects on their interrelationship?

    • COUNTER-DYNAMICS AT THE POLITICAL LEVEL

    POLITICS AND THE CONVENTION SYSTEM

  • To what extent is the Convention system part of the political/electoral debate?

  • Do parties have distinct views on the (reform of the) European Court of Human Rights and the European Convention on Human Rights? If so, what are they? Are they one of the core points of the political party's manifesto/identity?

  • Have the political parties’ positions evolved? For instance, have they become increasingly in favour for reforming the European Court of Human Rights or become increasingly euro-sceptic or euro-friendly? If so, why?

    • POLITICAL STRATEGIES AT THE EUROPEAN LEVEL: REFORM OF THE CONVENTION SYSTEM

  • What was the position of the national government in the build-up to the Brighton Conference in April 2012 concerning the reforms needed to the Convention system? Was this position beforehand and/or afterwards discussed in the national parliament? If so, to what extent and did this reveal differences in opinion between the political parties and majority v. opposition?

  • To what extent did the government and parliament agree with the UK Draft of the Brighton Declaration?

  • Chapter 5 - Belgium: Faithful, Obedient, and Just a Little Irritated

  • from PART II - SPARSE CRITICISM
    • By Patricia Popelier, Professor of Constitutional Law at the University of Antwerp and vice-dean for research at the law faculty
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 103-130

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

    While, in recent years, critical debates on the position and the case law of the European Court of Human Rights arose in neighbouring countries, this has not been the case in Belgium (A). The influence of both the European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) has nonetheless been substantial. Both courts and politicians have been eager to comply with the ECtHR's jurisprudence, which is based on an overall respect for the Convention system and the Court. Meanwhile, however, a growing sense of irritation comes to the surface (B).

    RESPECT FOR THE CONVENTION SYSTEM IS SHARED AT ALL LEVELS…

    At the base-line a commonly shared confidence in the Convention system can be discerned, at the political as well as the judicial and doctrinal level and at the level of the media.

    Marc Bossuyt describes criticising Strasbourg case law as a ‘taboo’. This is overstating the fact, as authors do criticise individual judgments. Nevertheless, doctrine, generally, is favourable of the ECtHR, to the point that Koen Lemmens threw himself into the breach for the Strasbourg Court, by taking a broader and dynamic perspective to the Court's case law, instead of focusing on very specific cases.

    The courts, in turn, display an extremely Europe-friendly attitude, as will be made clear in part III. The ECHR as well as the ECtHR take a prominent position in particular in the jurisprudence of the Constitutional Court, but other courts as well, as a rule, feel little hesitation to comply. In literature, this is identified as an important indicator for measuring the extent to which the ECtHR is considered a legitimate court. Courts can take this Europe- and Strasbourgfriendly attitude because they can rely on public support for the Convention system. The credibility and legitimacy of the ECtHR is generally not put to doubt at the political level or in public opinion. In this, political attitude and media interests reinforce each other. In general, both MP's and the media have adopted an unquestioning attitude towards the ECtHR. Only occasionally were critical opinions picked up by (Flemish) media.

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