III European Convention on Human Rights
| Published date | 01 June 2012 |
| Author | Lize R. Glas |
| DOI | 10.1177/016934411203000207 |
| Date | 01 June 2012 |
| Subject Matter | Part B: Human Rights News |
238 Intersentia
III EUROPEAN CONVENTION
ON HUMAN RIGHTS
L R. G*
e national authorities have primary responsibility for the European C onvention
protection machinery plays a subsidiary role. is task division, envis aged by the
Convention ever since its adoption, has acquired new relevance i n the light of issues
such as the European Court of Human Rights’ (the Court, ECtHR, the Strasbourg
Court) workload and legiti macy questions that surround the Convention system. It is
therefore an appropriate lens through which to d iscuss some developments.
1. JUDGMENTS
In its judgments, the Cour t may enter into a dialogue with the national authorities
and thereby potentially rein force respect for the primarity and subsidiar ity principle.2
In Emre v. Sw itz erl an d (no. 2),3 a ‘second-look’ cas e, the Strasbourg Court re viewed
the Swiss Supreme Court’s decision that meant to execute Emre v. Switzerland.4
Strasbourg could thus clarify to what extent domestic courts must follow its
jurisprudence during the execution process. It held that the courts must take into
consideration all elements of the Strasbourg reasoning; they must not focus on one
element. However, when they do substitute their own reasoning for Strasbourg’s
reasoning, their reas oning should be complete and persuasive.5 Due to thei r vagueness,
these clues do not give comprehensive guidance to national courts on how to reason
reopened cases, which may hamper a smoot h execution process. Provided their
reasoning is accepted by Stra sbourg, the question arises whet her domestic courts may
* PhD Candidate i n Law, Radboud University, Nijmegen: the Net herlands. e internet sites cite d in
this contribut ion were last visited on 21April 2 012.
1 See for more informat ion about the primarit y principle: Christo ersen, J., Fair Balanc e:
Proportional ity, Subsidiarity and P rimarity in the Euro pean Convention on Human Rig hts, Martinus
Nijho , Leiden, 20 09.
2 Bratza, N., ‘Solem n Hearing of the Europ ean Court of Human R ights on the Occasion of t he
Opening of the Jud icial Year’, 27January 2012, avail able at: www.echr.coe.int.
3 Emre v. Switzerland (no. 2), 11October 2011, (Appl.no. 5056/10).
4 Emre v. Switzerland, 22May 2008, (Appl.no. 4 2034/04).
5 Emre v. Switzerland (no. 2), supra note 3, par as. 71–72.
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