1st degree (Bachelor)
Coordinator Office Hours:
By special appointment
Prof Ron Soffer
The European Court of Human Rights (Court) was created by a treaty entitled the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).
The Court has jurisdiction over the parties to the Convention, which are the signatory States and not private individuals. Each of the contracting States to the Convention is entitled to designate one judge. A private litigant in domestic proceedings may apply to the Court against a State, once all the remedies made available by that State have been exhausted. The Court is not a court of final appeal, but one that adjudicates whether or not a Contracting State has violated the human rights enumerated in the Convention.
A finding by the Court that a particular right has been violated does not automatically lead to the reversal of the domestic decision in question. In some States, such as France, a finding by the Court that a criminal conviction was obtained in violation of the defendantís Convention rights, may lead to the quashing of such a conviction. The French Code of Criminal Procedure, for example, empowers the French Cour de Cassation, its supreme appellate jurisdiction, to quash a conviction subsequent to a finding by the Court that the defendantís conviction was obtained in violation of the rights enumerated in the Convention.
Articles 5, 6 and 7 of the Convention are generally intended to guarantee due process in criminal proceedings as well as in administrative and civil proceedings. Many of the Courtís judgments deal with issues of due process.
The course will focus on the criminal procedure aspects of due process. It will also briefly touch on administrative and civil proceedings.
The Court exercises jurisdiction over States which follow the common law system, such as the United Kingdom, Ireland and Cyprus. It also exercises jurisdiction over many States that follow the Napoleonic civil law system.
These two systems often have a different outlook on notions of due process. Furthermore, the judiciary in the different States comes from different backgrounds and receives different legal training. The same goes for the members of the Court.
The course will focus on how the Court has over the years reconciled between the civil law and common law notions of due process, sometimes causing fundamental changes in civil law procedure.
The course will, at first, go through certain fundamentals of civil law due process and subsequently analyze the Courtís case law which often has to reconcile between different legal systems and different notions of fairness.
It is an interesting balancing act, keeping in mind that the Courtís objective is not to force member States to abandon the fundamentals of their criminal procedure.
Introduce notions of due process and interpretation by the ECHR
Analyze EHCR case law on notions of due process and subsequently the Common law approach and civil law approach the notion of fairness.
Learning outcomes - On successful completion of this module, students should be able to:
- Identity and compare the main characteristics of the two legal systems.
- Identify and analysis the notion of due process and fairness before the ECHR.
- Equip students with the professional tools enabling them to analyze EHCR case law.
- Enable students to prepare and construct legal analysis based on EHCR case law and its interpretation of due process and fair trial.
100% of lectures
Teaching arrangement and method of instruction:
The seminar is conducted in English and in Hebrew if the students attending request. The reading material will mainly consist of decisions by the European Court of Human Rights.
1. Tuesday, March 1st, 2016 (9h15-12h15)
- Introduction to the fundamentals of civil law criminal procedure and introduction to articles 6 and 7 of the Convention
2. Wednesday, March 2nd 2016 (9h15-12h15)
- Continuation of the introduction + Constitutional issues and the Convention
3. Tuesday, March 8th, 2016 (9415-12h15)
- The harmonization of due process in criminal proceedings by the ECHR (1st part)
4. Wednesday, March 9th, 2016 (9h15-12h15)
- The harmonization of due process in criminal proceedings by the ECHR (2nd part)
- Conclusion about the effects of globalization: harmonization or unification of the law?
-The European Convention of Human Rights
-Article 55 of French Constitution
- Article 5 of the French civil code
-ECHR (Grande Chamber), GOODWIN C/ UK, July 11th, 2002
-UK Ė HOUSE OF LORDS, BELLINGER V. BELLINGER CASE Ė April 10th, 2003
FR Ė COUR DE CASSATION Ė April 16th, 2010
- ECHR (Grand Chamber), SALDUZ C/ TURQUIE, November 27th, 2008
- ECHR, DAYANAN C/ TURQUIE, October 13th, 2009
-FR - COUR DE CASSATION, Ass. Plénière Ė April 15th, 2011 (4 decisions)
-ECHR, BRUSCO C/ FRANCE, October 14th, 2010
-US, Supreme Court, MIRANDA V. US
- ECHR (Grand Chamber), TAXQUET C/ BELGIQUE, November 16th, 2010
- ECHR, AGNELET C/ FRANCE et LEGILLON C/ FRANCE, January 10th, 2013
- ECHR, MOULIN C/ FRANCE, November 23th, 2010
- ECHR, KOSKOVSKI C/ NETHERLAND, November 20th, 1989
- ECHR ELLIS AND SIMMS AND MARTIN C/ UK, April 10th 2012
- ECHR (Grand Chamber), AL KHAWAJA ET TAHERY C/ UK, December 15th, 2011
- ECHR, SOROS V/ FRANCE, October 6th, 2011
- EHCR, GRANDE STEVENS ET a. c/ ITALY, March 4, 2014 nį18640/18
- EHCR LUCKY DEV v. SWEDEN November 27, 2014
Additional Reading Material:
End of year written/oral examination 100 %
Presentation 0 %
Participation in Tutorials 0 %
Project work 0 %
Assignments 0 %
Reports 0 %
Research project 0 %
Quizzes 0 %
Other 0 %