The question of non-independent apex courts as effective remedies to be exhausted
- Author
- Mathieu Leloup (UGent)
- Organization
- Abstract
- This article discusses the question of whether non-independent apex courts should be considered effective remedies that must be exhausted before lodging a complaint before the European Court of Human Right (Court). It first analyses the special position of domestic apex courts in the European Convention on Human Rights (ECHR) framework and argues that a domestic court cannot be considered an effective remedy if it is not duly independent. Then, it shows how the Court has so far evaded taking a clear position on this issue. Finally, the article argues that the Court should deal with such issues of independence under the exhaustion criterion. It shows how such an approach is in line with existing case law and corresponds to the logic inherent in Article 35 ECHR. In doing so, the Court would, moreover, stress the systemic importance of domestic judicial independence for the proper functioning of a subsidiary Convention mechanism.
- Keywords
- exhaustion of domestic remedies, non- independent apex courts, effective remedies, subsidiarity, rule of law, EUROPEAN CONVENTION, HUMAN-RIGHTS, RULE
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Citation
Please use this url to cite or link to this publication: http://hdl.handle.net/1854/LU-01J9P42Z3WY3AN8NHC4DDXT2FS
- MLA
- Leloup, Mathieu. “The Question of Non-Independent Apex Courts as Effective Remedies to Be Exhausted.” EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW, vol. 5, no. 3, 2024, pp. 320–38, doi:10.1163/26663236-bja10102.
- APA
- Leloup, M. (2024). The question of non-independent apex courts as effective remedies to be exhausted. EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW, 5(3), 320–338. https://doi.org/10.1163/26663236-bja10102
- Chicago author-date
- Leloup, Mathieu. 2024. “The Question of Non-Independent Apex Courts as Effective Remedies to Be Exhausted.” EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW 5 (3): 320–38. https://doi.org/10.1163/26663236-bja10102.
- Chicago author-date (all authors)
- Leloup, Mathieu. 2024. “The Question of Non-Independent Apex Courts as Effective Remedies to Be Exhausted.” EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW 5 (3): 320–338. doi:10.1163/26663236-bja10102.
- Vancouver
- 1.Leloup M. The question of non-independent apex courts as effective remedies to be exhausted. EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW. 2024;5(3):320–38.
- IEEE
- [1]M. Leloup, “The question of non-independent apex courts as effective remedies to be exhausted,” EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW, vol. 5, no. 3, pp. 320–338, 2024.
@article{01J9P42Z3WY3AN8NHC4DDXT2FS,
abstract = {{This article discusses the question of whether non-independent apex courts should be considered effective remedies that must be exhausted before lodging a complaint before the European Court of Human Right (Court). It first analyses the special position of domestic apex courts in the European Convention on Human Rights (ECHR) framework and argues that a domestic court cannot be considered an effective remedy if it is not duly independent. Then, it shows how the Court has so far evaded taking a clear position on this issue. Finally, the article argues that the Court should deal with such issues of independence under the exhaustion criterion. It shows how such an approach is in line with existing case law and corresponds to the logic inherent in Article 35 ECHR. In doing so, the Court would, moreover, stress the systemic importance of domestic judicial independence for the proper functioning of a subsidiary Convention mechanism.}},
author = {{Leloup, Mathieu}},
issn = {{2666-3228}},
journal = {{EUROPEAN CONVENTION ON HUMAN RIGHTS LAW REVIEW}},
keywords = {{exhaustion of domestic remedies,non- independent apex courts,effective remedies,subsidiarity,rule of law,EUROPEAN CONVENTION,HUMAN-RIGHTS,RULE}},
language = {{eng}},
number = {{3}},
pages = {{320--338}},
title = {{The question of non-independent apex courts as effective remedies to be exhausted}},
url = {{http://doi.org/10.1163/26663236-bja10102}},
volume = {{5}},
year = {{2024}},
}
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