The European Court of Human Rights and National Courts: A Constructive Conversation or a Dialogue of Disrespect?

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Notes

¹ For further elaboration, see R Spano, “Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity”, (2014) 14(3) Human Rights Law Rev 487–502.

² For further elaboration, see R Spano, “Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity”, (2014) 14(3) Human Rights Law Rev, 488.

³ Terris, Romano and Swigart, The International Judge – An Introduction to the Men and Women Who Decide the World’s Cases (Oxford, Oxford University Press, 2007), xx.

⁴ Lord Hoffmann, ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009, 8.

⁵ Lindheim & Others v. Norway, nos. 13221/08 and 2139/10, 12 June 2012.

⁶ R Spano (n 1) 491.

⁷ James & Others v. United Kingdom, 21 February 1986, Series A no. 98.

⁸ HR 2007-1593-P, case no. 2007/237, § 126.

⁹ Lindheim & Others v. Norway (n 5) at § 16 where reference is made to the judgment of the Norwegian Supreme Court of 21 September 2007, see HR 2007-1593-P, case no. 2007/237, § 126.

¹⁰ S.A.S. v. France [GC], no. 43835/11, 1 July 2014.

¹¹ For a more extensive discussion on this issue, see R Spano (n 1) 497–99.

¹² S.A.S. v. France [GC] (n 10) § 129.

¹³ Lord Reid, “The Judge as Lawmaker” (1972) 12 JSPTL 22.

¹⁴ See further, the Norwegian Oxford Scholar E Bjørge’s excellent book, The Evolutionary Interpretation of Treaties (Oxford, Oxford University Press, 2014).

¹⁵ Tyrer v. United Kingdom, no. 5856/72, 25 April 1978.

¹⁶ Vilnes & Others v. Norway, nos. 52806/09 and 22703/10, 5 December 2013, §§ 235 and 236. At § 235, the Court stated: “In this regard, the Court reiterates that since Guerra and Others, cited above, §§ 57–60; developing López Ostra, cited above, § 55; see moreover McGinley and Egan, cited above, §§ 98–104; and Roche, cited above, §§ 157–69), the Court has affirmed a positive obligation for States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives. In the Court’s view, this obligation may in certain circumstances also encompass a duty to provide such information, as can be inferred from the concluding paragraph 60 (concerning Article 8) in Guerra and Others (cited above), and the affirmation of the ‘public’s right to information’ with reference to the latter in the context of Article 2 (see Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132). It does not follow from the foregoing that this right ought to be confined, as suggested by the Government, to information concerning risks that have already materialised . . .”. At § 236, the Court thus concluded: “In applying the above principles to the present case, the Court considers that the decompression tables used in diving operations may suitably be viewed as carriers of information which is essential in enabling the divers to assess the health risks involved, in the sense that diving carried out in accordance with the tables would be assumed to be relatively safe, whilst diving which did not respect minimum decompression standards would be deemed unsafe, a perception likely to be reinforced by diving operations being subject to prior administrative authorisation. Thus, the question arises whether, in view of the practices related to the use of rapid decompression tables, the divers received the essential information needed to be able to assess the risk to their health (see Guerra and Others, cited above, §§ 57 to 60, Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132) and whether they had given informed consent to the taking of such risks . . .”.