Friday, 26 November 2010

Interpretative Authority of ECtHR Judgments

A strong plea for the interpretative authority of Europea Court judgments. That is what PACE rapporteur Christos Pourgourides delivered last month at a conference in Skopje. He convincingly argued that one of the key ways to prevent repetitive applications to the Court and to prevent human violations in general is for state parties to take the res interpretata of the Court's judgments more seriously, even if it concerns judgments relating to other countries. He mentions two situations to illustrate his point:

The Court held as early as in 1979, in Marckx v. Belgium, that children born out of wedlock must not be discriminated. French law was similarly discriminatory. But the necessary changes were made only after France herself was condemned by the Court in the case of Mazurek v. France, in 2000! It was obvious, already back in 1979, what the Court’s position would be. Twenty years lost for the victims of such discrimination, and many years of unnecessary litigation before the Court in Strasbourg.

The second example concerns my own country: whilst the Court had already decided in 1981, in Dudgeon v. the United Kingdom, that homosexual acts between consenting adults must not be criminalised, Cyprus waited until the Modinos v. Cyprus judgment in 1993 to finally decriminalise such acts – and even then, I recall it well,
without much enthusiasm.
The speech is available online here. The speech is followed by a very informative compilation of background materials on the interpretative authority of the judgments of the European Court of Human Rights, with key extracts from relevant cases, but also a very elaborate overview of examples of national laws and domestic court cases which illustrate acceptance of res interpretata of the Strasbourg Court. Highly recommended!

3 comments:

Tobias Thienel said...

Thank you for this.

'Res judicata' is a slightly odd way to describe what the rapporteur is arguing for, though. Strictly speaking, 'res judicata' would be understood not as the Court's judicial authority in the sense of precedent, but only as the finality of its judgment in the individual case and as between its parties.

Other than that, I think the rapporteur has a very good point. In fact, I think the Court would agree (hence its readiness to give judgment to clarify a point for the States parties, even where the applicant has died and no-one is continuing the application - Karner v Austria).

Karsten said...

Tobias Thienel is right. Res judicata is not the correct term for what is discribed.

I think what is meant "res interpretata". This term is also used in Mr. Pourgroudis'es speech.

Antoine Buyse said...

Dear both,

You are of course absolutely right - it is res interpretata rather than res judicata which more correctly describes it. I had been reading on 'res judicata' last week in a different context, which might explain my tossle up.