Trial lecture - time and place
Adjudication committee
- Associate Professor Malcolm Langford,University of Oslo
- Prof. mr. Janneke Gerards, Utrecht University (1. opponent)
- Vice dean Patricia Popelier, University of Antwerp (2. opponent)
Chair of defence
Dean Dag Michalsen
Supervisors
- Supreme Court Justice dr. juris Arnfinn Bårdsen
- Professor Inger-Johanne Sand
- Professor Andreas Føllesdal
Summary
Background
The European Court of Human Rights (the Court) is flooded with applications claiming that the European Convention on Human Rights (the Convention or the ECHR) has been violated. This is not first and foremost a problem for the Court as an institution, but an expression of the fact that human rights, in many European countries, are not protected well enough. At the same time, the critique against the Court is increasing, in particular against its dynamic interpretation. Many claim that the solution to these questions lies in better and more effective domestic remedies. How can Article 13 ECHR contribute?
The European Convention on Human Rights Article 13
Article 13 provides a right to an effective domestic remedy when the applicant presents an arguable claim that his or her Convention rights have been violated. If so, the applicant needs be provided with access to an authority that can determine his or her arguable claim with binding effect and provide redress for any violations. However, even if the Court has provided a number of decisions and judgments concerning Article 13, it is riddled with questions and controversies. Only recently – in particular since the Grand Chamber judgment Kudla v. Polen (2000) – has the Court attempted to re-inforce and clarify its meaning and importance.
Main content
The thesis has two main goals.
Firstly, analyze how Article 13 is understood in the Court’s case law in light of the development and controversies which the Article has seen.
Secondly, provide normative and contextual depth that can allow us to understand why there has been such controversies and lack of clarity, and, on this basis, provide recommendations to the Court with regard to how the Article could and should be construed and applied.
Main recommendations
The thesis provides two main recommendations directed against the Court in Strasbourg.
Firstly, the Court should engage in more frequent and stricter procedural review of how domestic remedial authorities consider whether the Convention has been violated. To this end, the Court must make more active use of Article 13. As a consequence of ramping up procedural review, the Court must partly deprioritize substantive review (of other Convention Articles) – most notably by providing a larger margin of appreciation when reviewing whether other Convention rights have been violated.
Secondly, and as a necessary pre-requisite to the first, the Court needs to engage in more principled and abstract reasoning concerning Article 13. Such reasoning stands in contrast to the case-based and incremental approach which the Court has applied so far.
If these recommendations were to be implemented, Article 13 could help the Court improve the protection of human rights at national level without compromising its own legitimacy.