The Influence of the European Court of Human Rights on the Behavior of National Courts in Terrorism and National Security Cases: A Case Study of Supreme Courts in Denmark, the U.K., and Spain

31 Pages Posted: 8 Sep 2014

Date Written: August 24, 2014

Abstract

In the last decade, as more European states have responded to threats from terrorism with new national security laws and policies, these laws and practices have sometimes come into conflict with human rights jurisprudence concerning rights to privacy, free expression, unlawful detention, and other rights. These issues are making their way to the European Court of Human Rights (ECtHR), which is trying to decipher where to draw the line with these policies in terms of their negative impact on human rights. In this paper, I examine how the ECtHR might be influencing national courts in the area of human rights law and national security policy. I also examine other factors driving national court behavior in these cases. This paper investigates these questions quantitatively analyzing the decisions of high courts over the last several years in three member states of the Council of Europe: the U.K., Denmark, and Spain. The preliminary findings suggest that national courts are not necessarily influenced by the ECtHR, but rather they use references to the Convention and ECtHR precedent to their strategic advantage.

Keywords: European Court of Human Rights, terrorism, national security, Højesteret, United Kingdom Supreme Court, Tribunal Constitucional

Suggested Citation

McKenzie, Mark J., The Influence of the European Court of Human Rights on the Behavior of National Courts in Terrorism and National Security Cases: A Case Study of Supreme Courts in Denmark, the U.K., and Spain (August 24, 2014). APSA 2014 Annual Meeting Paper. Available at SSRN: https://ssrn.com/abstract=2452326

Mark J. McKenzie (Contact Author)

Texas Tech University ( email )

2500 Broadway
Lubbock, TX 79409
United States

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