Please, Disregard Us: When a Minority of the European Court of
Human Rights Declares its own Court to be Ultra Vires

J 2023

Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires

BOBEK, Michal and David KOSAŘ

Basic information

Original name

Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires

Authors

BOBEK, Michal (203 Czech Republic) and David KOSAŘ (203 Czech Republic, guarantor, belonging to the institution)

Edition

European Law Review, Sweet & Maxwell, 2023, 0307-5400

Other information

Language

English

Type of outcome

Článek v odborném periodiku

Field of Study

50501 Law

Country of publisher

United Kingdom of Great Britain and Northern Ireland

Confidentiality degree

není předmětem státního či obchodního tajemství

References:

Open access časopisu

Impact factor

Impact factor: 1.000 in 2022

RIV identification code

RIV/00216224:14220/23:00131103

Organization unit

Faculty of Law

UT WoS

001022164700003

Keywords in English

Administration of justice; Courts' powers and duties; European Court of Human Rights; Jurisprudence; Subsidiarity; Ultra vires

Abstract

V originále

Even in the tumultuous European judicial landscape of today, it is somewhat unusual to see a minority of a court to declare its own court to be ultra vires and to instruct the losing respondent state to disregard the judgment of the majority. That is nonetheless exactly what happened, in such a sharp and explicit manner for the first time, before the European Court of Human Rights in Grosam v Czech Republic. This contribution captures the story of that extraordinary case. It starts by explaining national law and practice and mapping out the procedure that led to the judgment. It then critically examines the implications of the judgment, making three broader arguments. First, the majority in Grosam violated the principles of subsidiarity and acted indeed ultra vires. Second, it extended the understanding of judicial independence beyond any reasonable limits. In doing so, the judgment fosters an extreme vision of judicial insulation in the name of judicial independence, both at the stages of judicial appointments, but also by excluding any and all lay persons from participation in judicial decision-making. Third, Grosam exposes structural shortcomings of the internal functioning of the European Court of Human Rights. This article therefore closes with thoughts on potential institutional changes that could be contemplate

Links

101002660, interní kód MU

Name: Informal Judicial Institutions: Invisible Determinants of Democratic Decay (Acronym: INFINITY)

Investor: European Union, ERC (Excellent Science)

Files attached

BOBEK_KOSAR_Please__Disregard_Us_-_When_a_Minority_of_the_European_Court_of_Human_Rights_Declares_its_own_Court_to_be_Ultra_Vires__2023_.pdf

Find similar documents

Citovat

BOBEK, Michal and David KOSAŘ. Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires. European Law Review. Sweet & Maxwell, 2023, vol. 48, No 3, p. 281-311. ISSN 0307-5400.

@article{2294405,
   author = {Bobek, Michal and Kosař, David},
   article_number = {3},
   keywords = {Administration of justice; Courts' powers and duties; European Court of Human Rights; Jurisprudence; Subsidiarity; Ultra vires},
   language = {eng},
   issn = {0307-5400},
   journal = {European Law Review},
   title = {Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires},
   url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4454987},
   volume = {48},
   year = {2023}
}

TY  - JOUR
ID  - 2294405
AU  - Bobek, Michal - Kosař, David
PY  - 2023
TI  - Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires
JF  - European Law Review
VL  - 48
IS  - 3
SP  - 281-311
EP  - 281-311
PB  - Sweet & Maxwell
SN  - 03075400
KW  - Administration of justice
KW  - Courts' powers and duties
KW  - European Court of Human Rights
KW  - Jurisprudence
KW  - Subsidiarity
KW  - Ultra vires
UR  - https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4454987
N2  - Even in the tumultuous European judicial landscape of today, it is somewhat unusual to see a minority of a court to declare its own court to be ultra vires and to instruct the losing respondent state to disregard the judgment of the majority. That is nonetheless exactly what happened, in such a sharp and explicit manner for the first time, before the European Court of Human Rights in Grosam v Czech Republic. This contribution captures the story of that extraordinary case. It starts by explaining national law and practice and mapping out the procedure that led to the judgment. It then critically examines the implications of the judgment, making three broader arguments. First, the majority in Grosam violated the principles of subsidiarity and acted indeed ultra vires. Second, it extended the understanding of judicial independence beyond any reasonable limits. In doing so, the judgment fosters an extreme vision of judicial insulation in the name of judicial independence, both at the stages of judicial appointments, but also by excluding any and all lay persons from participation in judicial decision-making. Third, Grosam exposes structural shortcomings of the internal functioning of the European Court of Human Rights. This article therefore closes with thoughts on potential institutional changes that could be contemplate
ER  -

BOBEK, Michal and David KOSAŘ. Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires. \textit{European Law Review}. Sweet \&{} Maxwell, 2023, vol.~48, No~3, p.~281-311. ISSN~0307-5400.

Detailed Information on Publication Record