Accountability of the Judiciary on the National Level for Violations of the European Convention on Human Rights

INDEPENDENCE, ACCOUNTABILITY, AND THE JUDICIARY: THE BRITISH INSTITUTE OF INTERNATIONAL AND COMPARITIVE LAW, pp. 419-429, G. Canivet, M. Andenas, D. Fairgrieve, eds.

11 Pages Posted: 27 Jul 2011

See all articles by Tom Barkhuysen

Tom Barkhuysen

Leiden University - Leiden Law School

Michiel L. van Emmerik

Leiden University - Leiden Law School

Date Written: 2006

Abstract

The European Convention on Human Rights (ECHR) imposes human rights obligations on Member States. The European Court of Human Rights (ECtHR or Court) in Strasbourg can hold these states accountable for violations of these obligations. In this respect it is irrelevant which public body, ie the legislator, the administration or the judiciary, has been the (primary) cause of this violation. This means that-on the international level-the ECtHR can hold Member States accountable for violations of the ECHR caused by the judiciary and can oblige them under Article 41 ECHR to pay complainants financial compensation. This is all very clear and deserves no further attention in this contribution.

Less clear, however, is the accountability of the judiciary on the national level for violations of the ECHR. Article 13 ECHR obliges Member States to provide effective remedies on the national level with regard to arguable claims that a violation of the ECHR has occurred. In other words, Article 13 obliges states to create means and ways by which public bodies that are responsible for human rights violations, or the state itself, can be held accountable on the national level. An interesting question is whether the national remedy requirement of Articles 6 and 13 ECHR also applies to human rights violations that can be attributed to the judiciary. This theme deserves further attention and will be the subject of this contribution.

The central question of this contribution is whether the ECHR obliges Member States to provide a remedy on the national level to hold the judiciary accountable for violations of the ECHR.

Keywords: ECHR, ECtHR, member states, human rights, judiciary, violation, article 6, article 13

Suggested Citation

Barkhuysen, Tom and van Emmerik, Michiel L., Accountability of the Judiciary on the National Level for Violations of the European Convention on Human Rights (2006). INDEPENDENCE, ACCOUNTABILITY, AND THE JUDICIARY: THE BRITISH INSTITUTE OF INTERNATIONAL AND COMPARITIVE LAW, pp. 419-429, G. Canivet, M. Andenas, D. Fairgrieve, eds., Available at SSRN: https://ssrn.com/abstract=1896145

Tom Barkhuysen (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Michiel L. Van Emmerik

Leiden University - Leiden Law School ( email )

P.O. Box 9520
Leiden, 2300 RA
Netherlands

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