The relations between the national, supranational, and international dimensions
The obligation to respect the ECHR in the legal orders of the EU Member States
The status of the ECHR in the legal orders of the Member States of the EU - which are all High Contracting parties of the Council of Europe44 - varies considerably according to the hierarchical position assigned to international treaties by the respective constitutional system.
In this respect, the doctrinal elements of monism and dualism play a major, yet not definitive, role in determining the rank of the Convention amongst the sources of law and whether its provisions are self-executing. This is capable of jeopardizing the effectiveness of the rights enshrined therein, especially since the ECtHR’s decisions have no erga omnes effects and are not intended to set general and abstract maxims.
Indeed, dualism does not per se exclude primacy over subsequent statutory norms, nor does it prevent direct effect and effective judicial protection. In a comparative perspective, the ECHR may be placed above the Constitution (e.g. in the Netherlands), considered as an integral part of the latter (e.g. in Austria), placed at an intermediate level between ordinary law and the Constitution (e.g. in France, Italy and the United Kingdom) or fully assimilated to the former (e.g. in Germany).45
Regardless of the collocation it finds amongst the sources of law, the ECHR and the case law of the Strasbourg Court are capable of impacting forcibly on the functioning of the domestic legal systems. Independently from the monist or dualist approach which characterizes their constitutional regime, the Legislator, and most notably the Judiciary, has to adjust to the Conventional system.
National courts, ordinary and/or constitutional courts depending on the specificities of the relevant legal order, are bound to interpret all legal norms in conformity with the ECHR and have progressively recognized direct effect to many of its provisions. On the other hand, domestic legislation has been amended so as to comply with the Convention, especially when the existing normative framework did not allow judicial activism to compensate for the deficiencies singled out by the ECtHR.
This is particularly true for the remedies available to individuals following an adverse finding on the part of the latter court determining a progressive alignment of substantial and procedural provisions, such as those concerning the reopening of proceedings, 46 the compensation for an excessive duration of the trial47 and the right to just and appropriate compensation for the damages suffered.48
44. At present 47 European countries have ratified the ECHR. For a detailed list of the Member States and of the single additional protocols they have ratified, see website http://www.echr.coe.int/.
45. For an in depth comparative analysis, see R. Blackburn and J. Polakiewicz (eds.), Fundamental rights in Europe, n. 4 above and H. Keller, A. Stone Sweet, A Europe of rights, the impact of the ECHR on National legal s. systems (Oxford University Press, 2008).
46. See, for instance, Art. 457 of the Dutch Code of Criminal Procedure, as amended in 2002; Art. 363a of the Austrian Code of Criminal Procedure, as introduced by the 1996 reform; Arts. 626 (paras 1–7) of the French Procedural Criminal Code, as amended in 2000 and Art. 359 (6) of the German Code of Criminal Procedure, as modified in 1998. In some instances the opening of administrative and civil cases is also allowed. See, for instance, the 1985 Austrian Administrative Court Act, (Verwaltungsgerichtshofgesetz), the German Code of Administrative Procedure (Verwaltungsgerichtsordnung) as amended in 2006 and the German Code of Civil Procedure (Zivilprozessordnung).
47 This is in particular the case of Italy (see Appl. Nos 7604/76, 7719/76, 7781/77 and 7913/77, Foti v. Italy, (1982) Series A, vol. 56; Appl. No 13023/87, Salesi v. Italy, (1993) Series A, vol. 257-E; Appl. No 34256/96, Di Mauro v. Italy, (1999) Reports 1999-V; Appl. No 31631/96, Procaccini v. Italy, (2000) unreported), but also of France (Appl. No 38212/97, F.E. v. France, (1998) Reports 1998-VIII, Appl. No 28738/02, Le Blenchennec v. France, (2006) unreported). With the so-called Legge Pinto (Law No 89 of 24 March 2001, OJ 78/2001), the Italian Legislator introduced a legal remedy which allows individuals to obtain compensation when their right to have a case heard within a reasonable time is breached. In France, compliance appears to have been achieved through judicial interpretation (See Cour de Cassation, 23 February 2001, Cts Bolle Laroche c/Agent judiciaire du trésor and Nouhaud et a. v. France , Appl. No 33424/96) Conseil d’Etat, 28 June 2002, Ministre de la Justice c/M. Magiera and Broca et Texier-Micault v. France , Appl. Nos. 27928//02 and 31694/02).
48. On the liability of the State and the right to damages, see, for instance, Art. 6:162 of the Dutch Civil Code and Section 8 of the HRA.