2. The Court has, in fact, acknowledged this when stating that its ‘judgments in individual cases establish precedents albeit to a greater or lesser extent’.110 Accordingly, there will always be certain practical limits on the extent to which the obligations imposed on states through the principle of res interpretata can reach. Search for other works by this author on: © The Author, 2017. 44179/98, Judgment of 10 July 2003, para. For judgments on ‘general measures’ where the Court does not cite the Animal Defenders judgment but, nevertheless, takes this approach, see ECtHR, Parrillo v. Italy, Appl. 1. no. The case law on the margin of appreciation in the context of balancing freedom of expression against the protection of private life has driven this innovation. Denne side blev senest ændret den 5. oktober 2019 kl. Mouvement Raëlien Suisse, supra note 65, para. no. 10, Joint Dissenting Opinion of Judges Tulkens, Davíd Thór Björgvinsson, Jočiené, Popović and Vučinić. 115. 74025/01, Judgment of 6 October 2005; ECtHR, Anchugov and Gladkov v. Russia, Appl. A good example of an autonomous Convention concept is to be found in Stec v. United Kingdom, where the Grand Chamber clarified its case law on the concept of ‘possessions’ under Article 1 of Protocol 1,117 while the Hirst (No. no. I international ret har den været brugt som et begreb, der beskriver enkelte, suveræne staters forpligtelser overfor statssamfundet som helhed. There is, therefore, no formal obligation to comply with the judgments of the Court in cases against other states as such, but, rather, an obligation to ‘take into account’ the principles flowing therefrom. ECtHR, Pretty v. United Kingdom, Appl. no. With respect to the new approaches devised, the ‘willingness of the national courts to make use of the Convention jurisprudential tools’ clearly influences the width of this margin of appreciation.123. no. In this the ‘milder’ approach, the Court still focuses on the domestic authorities’ performance, but while due Convention diligence opens up the margin of appreciation, the Court nevertheless also engages to some extent with proportionality in concreto. In the following I will use the term ‘due Convention diligence’ to refer to the requirement that national authorities exhibit due diligence by applying the principles and analytic approaches developed by the ECtHR domestically. I betragtning af, hvor vigtige de omhandlede rettigheder er, må alle stater anses for at have en retlig interesse i at beskytte dem; de er forpligtelser erga omnes. Due to the nature of their interpretative and adjudicative task, which is in essence the same as that of the Strasbourg Court, the principle of res interpretata seems most logically directed towards domestic courts.75 The legislature’s policymaking role, by contrast, is political and focused on the formulation of abstract rules as opposed to the individualized adjudicative function of courts. 74. 53; ECtHR, Üner v. the Netherlands, Appl. Protocol no. 24699/94, Judgment of 28 June 2001. 25965/04, Judgment of 7 January 2010, para. For positive inferences, see Hatton and Others, supra note 78, para. Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights, European Journal of International Law, Volume 28, Issue 3, August 2017, Pages 819–843, https://doi.org/10.1093/ejil/chx045. Compare, e.g., Von Hannover (No. 31045/10, Judgment of 8 April 2014. Tams and Tzanakopoulos, supra note 3, at 105–106. no 18310/096, Judgment of 5 November 2013; ECtHR, Print Zeitungsverlag GmbH v. Austria, Appl. 18:23. 66. For negative inferences, see, e.g., ECtHR, Waldemar Nowakowski v. Poland, Appl. 56; ECtHR, Novikova and Others v. Russia, Appl. 2), Appl. 56925/08, Judgment of 29 March 2016 (balancing under Arts 10 and 6(1)). However, in certain pockets of the case law, there may be lines of judgments that establish which kinds of considerations have what kind of effect in the balancing act, which allows the Court to give more detailed interpretative guidance.120 On the back of the level of stability and clarity thus reached, the Court can require national courts to take an approach that is relatively narrowly tailored to its own case law, while, at the same time, also recognizing the domestic court’s legitimate role of interpreting and applying that same case law in the particular context of the case at hand.121, As argued earlier in this article, the principle of res interpretata transpires from Articles 1, 19 and 32 of the ECHR and from the Court’s case law. Disregard for clear positions of principle in the case law, therefore, can be said to be in violation of the contracting parties’ obligations under Article 1 of the ECHR, irrespective of which state the relevant judgment was directed against. 54125/10, Judgment of 21 October 2014, para. Such a requirement is indeed also reflected in the CDDH’s final report, but from the different perspective of looking back towards the earlier judgments of the Court. 2) approach, while most judgments nevertheless concern these two issues. ECtHR, Opuz v. Turkey, Appl. 97. See also the identical reasoning of the Court in Erla Hlynsdóttir (No. 150; para. 128; Anchugov and Gladkov, supra note 19, para. 66. 73 (substantive debates in parliament and comments by courts); ECtHR, Evans v. United Kingdom, Appl. In its recent case law, the European Court of Human Rights (ECtHR) seems increasingly preoccupied with the quality of national judicial and democratic decision-making processes. 13258/09, Judgment of 16 January 2014. Eksemplerne på normer af erga omnes-typen omfatter pirateri, folkedrab, slaveri og racediskrimination.

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