The newest edition of the European Constitutional Law Review (vol. 8, issue 2, 2012) includes two ECHR-related articles. The first was written by my Dutch colleague and ECHR expert professor Janneke Gerards (Radboud Universiteit Nijmegen) and is entitled ‘The Prism of Fundamental Rights’ (the English version of her inaugural lecture of last year). These are the key words of the abstract:
European Court of Human Rights – Suggestions for reducing case backlog and national criticism of the Court – Alternative to incremental case law and reasoning by analogy – Greater deference to national courts where individual interests, rather than fundamental rights are at stake – Guidelines to find objective criteria for the definition of fundamental rights – Sharper delineation of Convention rights – Procedural review preceding substantive review
The second article on the ECHR was written by professor Marc Bossuyt, president of the Belgian Constitutional Court (but not written in that capacity) and is entitled ‘The Court of Strasbourg Acting as an Asylum Court’. This is the abstract:
The absolute character of the prohibition of inhuman or degrading treatment, invoked to justify findings of ‘indirect’ and ‘potential’ violations of the European Convention, brings the Court to speculate about future events in States non parties and to rely on secondary sources. Those special characteristics combined with new developments (such as its declaration that interim measures have become binding, the continuous lowering of the threshold of the applicability of Article 3, the transformation of that civil right into a social right and the recognition of asylum seekers as ‘a vulnerable population group in need of special protection’) increase the number and complexity of applications submitted to the Court by asylum seekers. It might be worthwhile to examine whether it would be preferable to transfer this kind of cases to a separate European Asylum Court which would exercise its jurisdiction in those applications with respect to States having explicitly recognized it.
