Comparative study el lev on the implementation tional of the ECHR at na the national level the t a This comparative analysis deals with the issues of application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in national legal systems of ECHR several States Parties to the Convention. the These important issues are dealt with in eight articles of elaborating the application of the ECHR in Croatia, France, Greece, Hungary, Italy, Poland, Russia and Serbia. Countries were tion selected following two criteria: monistic or dualistic systems – in ta order to demonstrate different legal consequences in both systems due to the application of the European Convention, and the commencement of the application of the Convention – presenting the states that have been parties to the Convention implemen since its adoption, as well as those that have become so in the the past two decades, which affects different level of activity of their n courts regarding the implementation of the Convention. o The experience from one country, as shown here, can serve as the inspiration for improving the implementation in another, as study e well as for overcoming certain obstacles and problems tiv identified in the articles. a ompar www.coe.int/nationalimplementation ENG C The Council of Europe is the continent's leading human Alessia Cozzi rights organisation. It comprises 47 member states, 28 of Athanassia Sykiotou which are members of the European Union. All Council of Dagmara Rajska www.coe.int Europe member states have signed up to the European Convention on Human Rights, a treaty designed to protect Ivana Krstic human rights, democracy and the rule of law. The Maria Filatova European Court of Human Rights oversees the Nikolina Katic implementation of the Convention in the member states. Petra Bard – Károly Bárd e Stephanie Bourgeois p o r u E f o l i c n u o C COMPARATIVE STUDY on the Implementation of the ECHR at the National Level Authors Alessia Cozzi, Athanassia Sykiotou, Dagmara Rajska, Ivana Krstic, Maria Filatova, Nikolina Katic, Petra Bard – Károly Bárd, Stephanie Bourgeois This publication has been prepared within the framework of the “Human Rights Friendly Judiciary” project funded by the Human Rights Trust Fund and implemented by the Council of Europe. The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. Council of Europe Belgrade 2016 Publisher Council of Europe Office in Belgrade Španskih boraca 3, 11070 Belgrade www.coe.org.rs For the Publisher Tim Cartwright Editor Silvija Panović-Đurić ISBN 978-86-84437-85-5 Circulation 500 Print, layout and cover design Dosije studio, Belgrade Copyright©2016 All rights reserved. No part of this publication may be translated, reproduced or transmitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical, including photocopying, recording or any information storage or retrieval system, without the prior permission in writing from the Directorate of Communications (F-67075 Strasbourg Cedex or [email protected]) Contents Foreword 5 Stephanie Bourgeois THE IMPLEMENTATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AT THE DOMESTIC LEVEL 7 Alessia Cozzi THE IMPLEMENTATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN COURT OF HUMAN RIGHTS CASE LAW IN ITALIAN JURISPRUDENCE 29 Athanassia Sykiotou THE RELATION OF GREEK COURTS WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW 47 Dagmara Rajska NATIONAL IMPLEMENTATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS – EXAMPLE OF POLAND 67 Ivana Krstic STATUS AND APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN THE REPUBLIC OF SERBIA 87 Contents 3 Maria Filatova THE IMPLEMENTATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN COURT’S CASE-LAW IN THE RUSSIAN LEGAL ORDER 107 Nikolina Katic IMPLEMENTATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ON NATIONAL LEVEL 129 Petra Bard – Károly Bárd THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE HUNGARIAN LEGAL SYSTEM 147 Stephanie Bourgeois IMPLEMENTATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN FRANCE, A PROCESS OF PROGRESSIVE ACCULTURATION 167 Comparative Study 4 Foreword omparative analysis before you is dedicated to the issue of the application of the European Convention on Human Rights in C the national legal framework of several contracting states to the Convention. This issues is of great importance, as the acceptance of the European Convention on Human Rights represents the first step towards its implementation in the national law, while the Convention leaves to the states the freedom to decide on their own how to respond to their commitment to respect and apply its provision. The way the state will do so, depends primarily on a reply to a question whether the European Convention can be applied directly, and on its status in the hierarchy of the national legal norms. Consequently, two legal systems emerged: monistic and dualistic. However, simple incorporation of the European Convention in domestic legal system is not capable of solving all problems emerging in the application of the European Convention, nor it is a guarantee of its complete and efficient application. Therefore, it is even more important to review the role of courts in this process. It is necessary to analyse up to which level national courts can examine conformity of the authorities’ procedures with the provisions of the European Convention, as well as the readiness of judges to apply the principles contained in the European Court of Human Rights jurisprudence, even in the cases when domestic legal framework provides clear basis. Replies to these important issues are provided in the eight articles dealing with the application of the European Convention in Croatia, France, Greece, Hungary, Italy, Poland, Russia and Serbia. The selection of countries was made following two principles: affiliation to the monistic, or dualistic legal system – in order to demonstrate different Foreword 5 legal consequences of both systems in the application of the European Convention; as well as the length of the contractual status, presenting the contracting states since the adoption of the Convention, respectively the states who became contracting stated in the last two decades, on which depends the level of courts’ activity in its implementation. Initially, all articles examine the status of the European Convention in domestic legal system, through the analyses of the hierarchy of legal norms and its direct application. In the second part, the authors point out the application of the European Convention and principles incorporated in the European Court’s jurisprudence by national courts, providing examples from both good and bad practice in the national case law. Finally, all authors give recommendations for improvement of the implementation of the European Convention and further steps that should be taken for the better, more effective and thorough implementation of the principles and standards outlined in the European Court jurisprudence. Experience from one country can serve as an inspiration for the improvement of implementation in another country, as well as a way to overcome some common obstacles and issues identified in the articles. Brief comparative overview of solutions from several states is given at the beginning. We hope that you will find this publication useful for your future professional endeavours. Comparative Study 6 The Implementation of the European Convention on Human Rights at the Domestic Level1 Stephanie Bourgeois Former lawyer at the ECtHR I. The Status of the European Convention on Human Rights in domestic law . 8 A. Preliminary remarks: the legal force of international treaties in the domestic legal order, monism versus dualism. 8 1. The dualistic view . 8 2. The monistic view. 9 B. Constitutional variety in Member States . 10 II. Judicial practices . 13 A. Consistent interpretation. 13 1. Constitutional provisions. 14 2. Legislative provisions . 16 3. Constitutional courts’ case law . 16 B. Judicial disapplication of domestic law . 20 1. Disapplication practice on constitutional bases . 21 2. Disapplication devised by domestic judges . 21 3. Constitutional provisions empowering national judges to disapply national law that conflicts with international treaties . 22 C. The limits to primacy: the counter-limits doctrine . 23 III. Conclusion . 27 1 Initial version of this Article has been prepared within the Council of Europe HELP programme. This version is revised and updated one. Stephanie Bourgeois 7 t is primarily the task of the national authorities of Contracting States to secure the rights and freedoms set forth in the Convention. To I what extent the national courts can play a part in this, by reviewing the acts and omissions of those national authorities, depends mainly on the question of whether the provisions of the Convention are directly applicable in proceedings before those national courts. The answer to this question depends in turn on the effect of the Convention within the national legal system concerned. The Convention does not impose upon the Contracting States the obligation to make the Convention part of domestic law or otherwise to guarantee its national applicability and prevalence over national law. I. The Status of the European Convention on Human Rights in domestic law A. Preliminary remarks: the legal force of international treaties in the domestic legal