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European Courts


It is essential to distinguish between the jurisdictions of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR), as the CPS is more likely to be involved with the latter.

The Human Rights Act 1998 (HRA), which came into force on 2 October 2000, requires a defendant in a criminal prosecution, for example, to pursue a challenge relying on Convention rights in the domestic courts first, before going to the ECtHR. As to the possible forms such a challenge may take, see the summary in Human Rights and Criminal Prosecutions Legal Guidance.

The ECJ has jurisdiction over questions of European Union law, including Police and Judicial Cooperation Matters.

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The European Court of Justice

The ECJ is a European Union body with jurisdiction over questions of European Union law. European Community law is part of the law of the United Kingdom by virtue of section 2 of the European Communities Act 1972. Article 234 of the Treaty of Rome (establishing the European Community) gives the ECJ in Luxembourg jurisdiction over questions of interpretation of the Treaty, validity and interpretation of acts of the Community institutions and interpretation of statutes of bodies established by an act of the Council of Ministers, where provided for in those statutes.

The European Court of Human Rights

The ECtHR is a Council of Europe body, not connected to the European Union institutions. This Court in Strasbourg, France was established in 1959 following the adoption of the European Convention on Human Rights in 1950 by the Council of Europe of which the United Kingdom is a member. Article 34 of the Convention states that the Court may receive applications from "any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto". The Human Rights Act 1998 came into force on 2 October 2000 and provides a direct remedy in domestic courts for individuals who allege that the Convention rights have been violated. Previously these individuals had to take such cases to the ECtHR. Applications may still be made to the ECtHR, but only once domestic remedies are exhausted. Section 2 of the HRA obliges any court or tribunal determining a question relating to a Convention right to take into account the jurisprudence of the European Court of Human Rights. Sections 3 and 4 respectively, deal with interpretation of UK legislation and declarations of incompatibility with Convention rights.

Applications to the ECtHR

These applications require a governmental response, coordinated by the Foreign & Commonwealth Office, who involve the Ministry of Justice on an ad hoc basis as the lead department for applications arising out of criminal prosecutions.

In many human rights cases arising from the administration of the criminal justice system, such as maltreatment in custody or prison, or misdirections in court, the CPS may not be involved.

The CPS will be contacted by the Ministry of Justice on behalf of the Foreign & Commonwealth Office, and Areas should contact International Division, Serious Crime Group, to discuss any response and ensure that a central record of such cases is maintained. This is to ensure consistency of response and to identify the appropriate unit in the Ministry of Justice with which to lodge the papers, as this depends on the subject matter of the application.

For guidance on how to deal with the issues of human rights law most likely to involve the CPS, see the Human Rights and Criminal Prosecutions Legal Guidance.

References to the ECJ

Where a question of European Community law is raised and the Crown Court or the Court of Appeal considers that it cannot give judgement without a decision on that question, either court may refer the question to the ECJ for a preliminary ruling under Article 234 of the Treaty. The relevant procedural rules of court are to be found in Archbold.

In the magistrates court, a similar procedure is followed whereby the points of law to be referred for decision are specified by order of the Court.

Evidence for proceedings in the ECJ can be taken in the UK as the Evidence (European Court) Order, 1976 (SI 1976 No.428), applies Sections 1-3 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 to that Court.

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Useful links

The European Court of Justice

The European Court of Human Rights

Human Rights and Criminal Prosecutions

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