Constitutional Relevance of the Echr in Domestic and European Law

Häftad, Engelska, 2013

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Beskrivning

This volume examines the different facets of the ECHR's constitutional relevance in the European constitutional culture by separating the ECHR's role as a 'factor of Europeanisation' from its role as a veritable European transnational constitution in the field of human rights.

Produktinformation

Utgivningsdatum:2013-05-13
Mått:160 x 240 x 16 mm
Vikt:442 g
Format:Häftad
Språk:Engelska
Antal sidor:266
Förlag:Intersentia Ltd
ISBN:9781780681184

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Innehållsförteckning

INTRODUCTION. THE ECHR AND THE EUROPEAN CONSTITUTIONAL LANDSCAPE: R EASSESSING PAR ADIGMS Giorgio Repetto 1. The ECHR and the Idea of 'Constitutional Relevance' 2. The ECHR'S Constitutional Dimension in Domestic Law 3. The Trans-European Constitutional Relevance of the ECHR 4. The 'Italian' Perspective 5. Outline of Chapters PART I. ESTABLISHING A CONSTITUTIONAL DIMENSION FOR THE ECHR IN DOMESTIC LAW PART I.A. THE RENEWING OF A CONSTITUTIONAL CULTURE: THE ECHR IN ITALIAN DOMESTIC LAW The Constitutional Background of the 2007 Revolution. The Jurisprudence of the Constitutional Court Diletta Tega 1. The Value of the European Convention on Human Rights in the System of National Sources: Doctrinal Reconstructions 2. The Jurisprudence of the Constitutional Court 2.1. The First Phase: A Traditional Dualism 2.2. The Second Phase: A More 'Modern' Dualism 2.3. The Third Phase: A Duality 'In Transformation'Rethinking a Constitutional Role for the ECHR. The Dilemmas of Incorporation into Italian Domestic Law Giorgio Repetto 1. The New Ranking of the ECHR and the Shift to 'Constitutional Dualism' 2. The Constitutional Background of the 2007 Revolution 2.1. 'Abstractness' and 'Embeddedness' in Constitutional Adjudication 2.2. The Model of the ECHR as 'Interposed Rule' and its Institutional Underpinnings 3. The Quest for Substantial Interaction Between Constitutional and Conventional Guarantees 5 4. 'Italian Style' and the ECHR: The Current Situation 5. The Incorporation of the ECHR: A Matter of Constitutional Theory? Strasbourg Jurisprudence as an Input for 'Cultural Evolution' in Italian Judicial Practice Andrea Guazzarotti 1. Strasbourg Jurisprudence and 'Culture' of Judicial Precedent in Italy 2. Comparing the Reporting System of the Strasbourg and Italian Jurisprudence 3. The ECHR and the 'Ad Hoc Balancing Delegated to Courts' 4. The 'Concreteness' of the Tests Provided by the European Court of Human Rights 5. Distinguishing and Decisions No. 348 and No. 349 of 2007 of the Italian Constitutional Court 6. The Agrati Case, or the Failure of the Italian Way to Manipulate Precedents 7. Conclusion PART I.B. THE MOST DANGEROUS BREACH? THE RIGHT TO A FAIR TRIAL AND THE QUEST FOR EFFECTIVENESS The Strasbourg Court's Influence on the Italian Criminal Trial Mariangela Montagna 1. The Dialogue Between Courts and the Protection of Fundamental Rights, Between Changing Roles and New Outlooks of Interpretation 2. Trial In Absentia and Remedies 2.1. Pressures From the European Court of Human Rights 2.2. 'Internal' Solutions: The Legislature's Action 2.3. Action by the Constitutional Court 3. Right to a Public Hearing The ECHR's Influence on the Italian Regulation of the Administrative Tria l. The Right to an Independent and Impartial Tribunal Marta Mengozzi 1. Introduction: the Right to a Fair Trial in the Convention System 2. The Guarantee of the Judge's Impartiality and the Various Outcomes of the Dialogue Between Legal Systems 3. A Case of Clear ECHR Influence: the So-called Force of Prevention 4. A Case of Extremely Complex Dialogue: The Simultaneous Presence of Consultative and Jurisdictional Functions in the Bodies of Administrative Justice 5. A Case of Missed Dialogue: Non-judicial Positions Held by Administrative Magistrates 6. Conclusion PART I.C. ECHR IN NATIONAL CONSTITUTIONS: COMPARATIVE PERSPECTIVES Toward a Convergence Between the EU and ECHR Legal Systems? A Comparative Perspective Oreste Pollicino 1. The Post-Enlargement Aggressive Phase of the European Court of Human Rights 2. The Opposite Post-Enlargement Reaction of the Court of Justice of the European Union 3. The National Judicial Treatment of the Supranational Laws. Confirmation or Denial of the Convergence Process Identified at the European Level? National Constitutions and the ECHR. Comparative Remarks in Light of Germany's Experience Alessandra Di Martino 1. Introduction 2. The German Federal Constitutional Tribunal and the European Court of Human Rights 2.1. The Gorgulu-BeschluA 2.2. The Caroline-Urteil II 2.3. The Judgment on Preventive Detention 3. Comparative Remarks 3.1. The ECHR in the Italian Legal Order 3.2. Non-Application and Construction of Ordinary Law in Harmony with the Convention 3.3. Balancing and Reasonability Tests 3.4. The Impact of the ECHR and Related Case Law on National Courts and Legislators 4. Conclusion PART II. INNER AND OUTER BOU NDAR IES: THE RELATIONSHIP OF THE EUROPEAN COURT OF HUMAN RIGHTS WITH CONTR ACTING STATES AND WITH THE EU PART II.A. JUST DEFERENCE? THE MULTIPLE FACETS OF THE DOCTRINE OF MARGIN OF APPRECIATION Teaching of Religion and Margin of Appreciation. The Reluctant Liberalism of the Strasbourg Court Alberto Vespaziani 1. The Doctrine of the Margin of Appreciation 2. The Folgero v. Norway Case 3. The Hasan and Eylem Zengin v. Turkey Case 4. The Selective Liberalism of the Strasbourg Court The Crucifix and the Margin of Appreciation Ilenia Ruggiu 1. A Constitutional Conversation over a Religious Symbol 2. A Brief History of the 'Crucifix Issue' in Italy 3. Does the Use of the Margin of Appreciation Limit the Convention's Rights? 4. What are the Conditions for Using the Margin of Appreciation? 5. Was there an Alternative to the Margin of Appreciation? The Unbearable Lightness of the Margin of Appreciation: ECHR and 'Bio-Law' Antonello Ciervo 1. The Margin of Appreciation Doctrine in ECHR Case Law on 'Bio-Law': General Profiles of Reconstruction 2. State Margin of Appreciation and Beginning of Life Issues 3. State Margin of Appreciation and End of Life Issues 4. Concluding Remarks on the Role of the Strasbourg Court on the Sidelines of the ECJ Judgment Brustle v. Greenpeace Histories, Traditions and Contexts in the Jurisprudence of the European Court of Human Rights Andrea Buratti 1. The Problem of the Use of History in Strasbourg's Jurisprudence 2. Historical Argument in Strasbourg's Jurisprudence 2.1. Historical Contextualisation and Constitutional Tolerance 2.2. The Insufficiency of Historical Argument (Sejdic and Finci v. Bosnia-Herzegovina) 2.3. The Flight From the Communist Past 2.4. Principle of Secularism and Historical Traditions 2.5. The Use of Historical Argument: Open Questions 3. Denying Historical Truth: An Abuse of Law 4. Towards a Conclusion: Protection of Historical Traditions or Critical Historical Method? PART II.B. COOPER ATION IN NEED OF COORDINATION: EUROPEAN COURT OF HUMAN RIGHTS AND THE EU Immigrants' Family Life in the Rulings of the European Supranational Courts Gianluca Bascherini 1. Introduction 2. The ECtHR's Jurisprudence on Immigrants' Right to Private and Family Life. The Progressive but Oscillating Enlargement of the Protection Afforded by Article 8 3. The Jurisprudence of the ECJ: Is the Family Going to Market? 4. Conclusions. Movement of People, Movement of Law Cooperation in Relations Between the ECJ and the ECtHR Angelo Schillaci 1. Separation and Cooperation 2. The Opening up of the ECJ and the Comparative Method 3. EU Law in ECtHR Case Law: Resistance and (Laboured) Opening 4. The EU Charter of Fundamental Rights in the ECtHR'S Case Law 5. EUCFR and 'Horizontal Clauses' in the ECJ Case Law: Towards Another Centre of Gravity? 6. Conclusion The EU and its Member States Before the Strasbourg Court. A Critical Appraisal of the Co-Respondent Mechanism Simone Vezzani 1. Preliminary Remarks on the EU Accession to the ECHR: Th e Problem of Shared Responsibility 2. The Co-Respondent Mechanism as Envisaged in the Draft Accession Agreement 2.1. Exclusion of Intervention Forcee 2.2. Admissibility Criteria for Applications 2.3. Prior Involvement of the ECJ 3. Conclusion CONCLUDING REMARKS The Constitutional Relevance of the ECHR in Domestic and European Law. General Assessments Cesare Pinelli 1. 'Constitutional Justice' with Reference to the Strasbourg Court: A Preliminary Assessment 2. Two Versions of 'Formalism' 3. The Parallel Evolution of the Strasbourg Court and the Constitutional Courts 4. Is the ECtHR Challenging the National Systems of Constitutional Adjudication? 5. How Ordered is 'Ordered Pluralism'? A Tentative Approach 6. Examples from the Strasbourg Case Law