The book analyses the position of the ECt HR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECt HR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECt HR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept – ‘principled resistance’ – to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind ‘principled resistance’ shows enough commonalities in order to qualify such incidents as expression of a ‘new paradigm’.
Daftar Isi
Part I.- Theoretical Framework.- ‘Principled Resistance’ to ECt HR Judgments: Dogmatic Framework and Conceptual Meaning.- Resistance to the European Court of Human Rights: The Institutional and Sociological Consequences of Principled Resistance.- Part II.- National Perspectives.- Principled Resistance to and Principled Compliance with ECt HR Judgments in Germany.- ‘Principled Resistance’ to ECt HR Judgments in Austria.- Judicial Disobedience and the ECt HR: The Italian Case.- Resistance in Switzerland: Populist Rather Than Principled.- Principled Criticism and a Warning from the ‘UK’ to the ECt HR?.- The Execution of ECt HR Judgements and the ‘Right to Object’ of the Russian Constitutional Court.- Part III.- International Perspectives.- The Perspective of the Venice Commission.- The National Identity Criterion in the Crossfire Between European Integration and the Preservation of National Sovereignty.- ‘Principled Resistance’ to ECt HR Judgments: An Appraisal.
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