Open AccessInconsistent Adjudication – A Violation of the Right to Fair Trial Under the European Convention on Human Rights
Author(s) -
Dragoljub Popović
Publication year - 2021
Publication title -
anali pravnog fakulteta u beogradu
Language(s) - English
Resource type - Journals
eISSN - 2406-2693
pISSN - 0003-2565
DOI - 10.51204/anali_pfbu_21201a
Subject(s) - convention , human rights , law , adjudication , political science , jurisdiction , common law , jurisprudence , international human rights law , law and economics , sociology
The ECtHR does not review decisions of national courts of the States Parties to the European Convention. However, it has developed a pattern in its case law to find a violation of the Convention on the grounds that the fair hearing lacked if there was a case law inconsistency at the level of national jurisdiction. The ECtHR case law was settled in a Grand Chamber case against Turkey in 2011. To find a violation under Article 6 of the Convention the ECtHR requires two tests. Firstly, it must establish the existence of a profound and long-standing inconsistency in the domestic case law, and secondly, the ECtHR raises the issue of a mechanism aimed at removing the inconsistency. If the mechanism does not exist, or if it applied ineffectively, the ECtHR finds a violation of human rights. The author suggests the ECtHR should revisit its jurisprudence.