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On the Structure of Judgments

Access to the ECtHR. Source: ECtHRs website

Access to the ECtHR. Source: ECtHR's website

I like structuring, because it brings some order into the otherwise chaotic ideas. Considering structuring reasonable, I have researched the structures of the ECJ judgments (they differ, for example, in the cases of free movements; state liability, competition, etc.).

Now, a study has appeared about the structure of the judgments of the ECtHR – Robin C. A. White, “Judgments in the Strasbourg Court: Some Reflections. Context and structure of Strasbourg judgments”.

The article refers to Article 45 of the ECHR:

Article 45 – Reasons for judgments and decisions

1 Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.

2 If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

in the light of Rule 74 of the Rules of Court:

Rule 74

(Contents of the judgment)

1. A judgment as referred to in Articles 42 and 44 of the Convention shall contain

(a) the names of the President and the other judges constituting the Chamber concerned, and the name of the Registrar or the Deputy Registrar;

(b) the dates on which it was adopted and delivered;

(c) a description of the parties;

(d) the names of the Agents, advocates or advisers of the parties;

(e) an account of the procedure followed;

(f) the facts of the case;

(g) a summary of the submissions of the parties;

(h) the reasons in point of law;

(i) the operative provisions;

(j) the decision, if any, in respect of costs;

(k) the number of judges constituting the majority;

(l) where appropriate, a statement as to which text is authentic.

2. Any judge who has taken part in the consideration of the case shall be entitled to annex to the judgment either a separate opinion, concurring with or dissenting from that judgment, or a bare statement of dissent“.

The article then presents / gives the modern for of judgment as follows:

(a) List of judges and dates

(b) Procedure

(c) The facts

(i) The circumstances of the case

(ii) Relevant domestic law and practice

(d) The law

(i) Alleged violation

(A) The parties’ submissions

(B) The Court’s assessment(a) List of judges and dates

(b) Procedure

(c) The facts

(i) The circumstances of the case

(ii) Relevant domestic law and practice

(d) The law

(i) Alleged violation

(A) The parties’ submissions

(B) The Court’s assessment

(e) Application of Article 41 of the Convention (where relevant)

(f) The dispositif or judgment, indicating whether or not the Court is unanimous

(g) Separate and dissenting opinions

Judgments may also have additional headings and sub-headings.

At page 5, the article reveals about the process of writing judgments, beginning with the appointment of the Judge Rapporteur.

Still, the technical structure of a judgment in itself cannot guarantee quality judgments.

Something else to think of: At page 10, the article raises the question, whether the ECtHR is internationalizing constitutional law, or constitutionalizing international law?



One Response to On the Structure of Judgments

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