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Licensed Unlicensed Requires Authentication Published by De Gruyter February 8, 2017

Are Austrian Courts Obliged to Consider the Jurisprudence of the European Court of Human Rights when Interpreting the ECHR?

Claudia Mayer

Assistant Professor at the Vienna University of Economics and Business, Institute for Austrian and European Public Law

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and Herwig Wutscher

EU-Trainee at the Austrian Federal Economic Chamber

From the journal ICL Journal

Abstract

According to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demon­strate that such an obligation follows from the system and telos of the ECHR and the con­stitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and ar­gue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.

About the authors

Claudia Mayer

Assistant Professor at the Vienna University of Economics and Business, Institute for Austrian and European Public Law

Herwig Wutscher

EU-Trainee at the Austrian Federal Economic Chamber

Published Online: 2017-2-8
Published in Print: 2014-6-1

© 2017 by Walter de Gruyter Berlin/Boston

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