The implementation of the ecthr's case-law andthe execution procedure after protocol no. 14

• Author: Lorena Bachmaier Winter
• Position: Complutense University of Madrid, J.D.; Complutense University, M.A. in Political Science
• Pages: 9-21

Contents

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LESIJ NO. XVII, VOL. 2/2010

THE IMPLEMENTATION OF THE ECTHR’S CASE-LAW AND THE

EXECUTION PROCEDURE AFTER PROTOCOL NO. 14∗

Lorena BACHMAIER WINTER ∗∗

Keywords: case-law, European Court of Human Rights, human rights

I. Introduction

One of the goals of the Council of Europe, as stated in the Preamble of its Statute of London

(5.5.1949) is to advance towards the idea of a democratic Europe, based on the principles of

individual freedom, political freedom and the rule of law. Democracy and the commitment to

respect the human rights, placing the importance of man before the importance of the State, is a

condition to be accomplished by the states that should like to be members or are already members

to the Council of Europe. In 1950 the European Convention of Human Rights (ECHR) is approved

as an initial list of minimum essential fundamental rights, list that has been enhanced and

completed later by different protocols. The body established to control the respect of the human

rights and thus the compliance with the Convention is the European Court of Human Rights

(ECtHR), which acquires exclusive jurisdiction to decide on the violations of the Covention since

Protocol No. 11 was signed in 1998. Through its case-law the ECtHR not only grants protection

against violations of the rights recognized in the Convention, but has contributed to expand the

understanding of human rights and has promoted a legal harmonization within Europe by defining

a common standard of human rights. In that sense, the ECtHR plays the role of a quasi-

constitutional court for the protection of human rights1. But, once the decision is rendered, there is

not a “European enforcement procedure”.

When analyzing the impact of the European Court of Human Rights (ECtHR) upon the

decisions and practice of domestic courts and institutions, a core issue is undoubtedly the

implementation of the standards set out by the ECtHR and the execution of the Court’s decisions

in the Member States. The implementation of the case law of the ECtHR by the domestic courts,

state institutions and in general the understanding of the Human Rights, requires that the Court’s

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∗ This paper is based on the presentation made in the Conference CKS that took place in Bucharest in April

2010.

∗∗ Complutense University of Madrid, J.D.; Complutense University, M.A. in Political Science; Complutense

University, J.S.D. Professor Bachmaier Winter has been a Professor at the Faculty of Law at Complutense

University since 1996, where she has taught criminal procedure and civil procedure. She has written extensively on

the subject of procedure. She has lectured in universities and governmental agencies in Europe and Latin America.

She is a member of the Spanish Royal Academy of Jurisprudence and Legislation and of the Ibero-American

Association of Procedural Law. She has been a fellow of the Alexander von Humboldt Foundation, and a visiting

scholar in the Max-Planck-Institut for Criminal Law and Procedure (Freiburg i. Br., Germany) and at the University

of California – Berkeley and Harvard University. Her comparative legal studies are focused on human rights and

procedure, international judicial cooperation, comparative law and the EU process of legal harmonization. She has

consulted for the Ministry of Justice of Spain. E-mail: l.bachmaier@der.ucm.es.

1 E. GARCÍA DE ENTERRÍA, “Valeur de la jurisprudence de la Cour européenne des droits de l´homme en

droit espagnol”, in Mélanges en l’honneur de Gérard J. Wiarda, Köln 1988, p. 221.