The Öcalan judgment may well be regarded as a landmark authority contributing to the development of human rights law by way of judicial insight. When assessed as against the background of the most relevant developments in international law and jurisprudence, the particular significance of the European Court’s decision is all the more apparent. This is especially true if one considers its possible repercussions on State practice in matters of prosecution and punishment of international criminals, notably in connection with the ever crucial problem of protecting fundamental human rights while countering international terrorism. Although the Court missed the opportunity to elaborate on some topical issues such as the status of general international law on the death penalty and State-sponsored abduction (this being in fact the main ground of appeal for referral of the case to the Grand Chamber) or extradition procedures in cases involving the possible imposition of capital punishment, this judgment nonetheless provides a reliable precedent for future developments in this area. Special emphasis must also be laid on the Court’s approach with regard to the evolutive interpretation of the Convention and its reliance—whether express or implied in its reasoning—on recent trends in international case law, in keeping with the recognition that “international case-law, of courts or arbitration tribunals, gives the Court valuable guidance”. Indeed, it is noteworthy that the Court has drawn on the pronouncements of other international courts and human rights bodies in order to interpret the scope of both procedural and substantive provisions. Mutual recognition of human rights bodies case law—coupled with a wise and cautious resort to evolutive interpretation in compliance with the principle of the effet utile—may indeed be regarded as an appropriate tool for widening human rights courts’ jurisdiction, thus strengthening regional protection systems. The overall effect of such a phenomenon would significantly contribute to a better efficacy of human rights guarantees at a more general level.

Interpreting the European Convention on Human Rights in Harmony with International Law and Jurisprudence: What Lessons from Ocalan v. Turkey?

NEGRI, Stefania
2005

Abstract

The Öcalan judgment may well be regarded as a landmark authority contributing to the development of human rights law by way of judicial insight. When assessed as against the background of the most relevant developments in international law and jurisprudence, the particular significance of the European Court’s decision is all the more apparent. This is especially true if one considers its possible repercussions on State practice in matters of prosecution and punishment of international criminals, notably in connection with the ever crucial problem of protecting fundamental human rights while countering international terrorism. Although the Court missed the opportunity to elaborate on some topical issues such as the status of general international law on the death penalty and State-sponsored abduction (this being in fact the main ground of appeal for referral of the case to the Grand Chamber) or extradition procedures in cases involving the possible imposition of capital punishment, this judgment nonetheless provides a reliable precedent for future developments in this area. Special emphasis must also be laid on the Court’s approach with regard to the evolutive interpretation of the Convention and its reliance—whether express or implied in its reasoning—on recent trends in international case law, in keeping with the recognition that “international case-law, of courts or arbitration tribunals, gives the Court valuable guidance”. Indeed, it is noteworthy that the Court has drawn on the pronouncements of other international courts and human rights bodies in order to interpret the scope of both procedural and substantive provisions. Mutual recognition of human rights bodies case law—coupled with a wise and cautious resort to evolutive interpretation in compliance with the principle of the effet utile—may indeed be regarded as an appropriate tool for widening human rights courts’ jurisdiction, thus strengthening regional protection systems. The overall effect of such a phenomenon would significantly contribute to a better efficacy of human rights guarantees at a more general level.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11386/1062729
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