The Court’s Correcting Mechanism: ‘General Measures’ as a Judicial Remedy to Address Legislative Inaction?

Abstract Citizens confronted with a domestic legislator remaining inactive in contravention of its human rights obligations may turn to the European Court of Human Rights (ECtHR or Court). Having already passed legal challenges at the ‘heads’ end of the European system of human rights, the question arises whether they can find redress at the ‘tail’. When the ECtHR establishes a violation due to a lack of regulatory framework, it may decide to indicate general measures in Article 46 and pilot judgments. Based on an analysis of case law, this paper elaborates on how the Court goes about its remedial practice in legislative inactivity cases. The observations relate to addressing the domestic legislator directly, and the frequency, legal status, content, and deadline of the measures. They can, at least in part, be explained by the Court’s adherence to the principle of subsidiarity. Still, many uncertainties concerning the Court’s practice remain.

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Publication Details

Journal
The European Convention on Human Rights Law Review
Published
2024-08-23
DOI
https://doi.org/10.1163/26663236-bja10103
Primary Topic
European and International Law Studies
Type
article
Field-Weighted Citation Impact
0.00
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article

The Court’s Correcting Mechanism: ‘General Measures’ as a Judicial Remedy to Address Legislative Inaction?

Anne Bombay
The European Convention on Human Rights Law Review
European and International Law Studies
article

The Court’s Correcting Mechanism: ‘General Measures’ as a Judicial Remedy to Address Legislative Inaction?

Anne Bombay
article en

Abstract

Abstract Citizens confronted with a domestic legislator remaining inactive in contravention of its human rights obligations may turn to the European Court of Human Rights (ECtHR or Court). Having already passed legal challenges at the ‘heads’ end of the European system of human rights, the question arises whether they can find redress at the ‘tail’. When the ECtHR establishes a violation due to a lack of regulatory framework, it may decide to indicate general measures in Article 46 and pilot judgments. Based on an analysis of case law, this paper elaborates on how the Court goes about its remedial practice in legislative inactivity cases. The observations relate to addressing the domestic legislator directly, and the frequency, legal status, content, and deadline of the measures. They can, at least in part, be explained by the Court’s adherence to the principle of subsidiarity. Still, many uncertainties concerning the Court’s practice remain.

The European Convention on Human Rights Law ReviewVol. 5(3)
KU Leuven (BE)
Peace, Justice and strong institutions
Openalex Percentile: Top 78%
European and International Law Studies
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