Human Rights Law Review Advance Access originally published online on May 15, 2009
Human Rights Law Review 2009 9(2):179-201; doi:10.1093/hrlr/ngp006
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An Examination of the European Court of Human Rights’ Approach to Overruling its Previous Case Law
*Professor of Public Law, University of Nottingham (a.r.mowbray{at}nottingham.ac.uk).
The article begins with a consideration of the views of commentators, from both inside and outside the Strasbourg system, as to the nature of precedent within the jurisprudence of the Court. The approach of the original Court is then examined. This is compared with the contemporary case law of the full-time Court and three justifications for overruling established rulings are identified in the modern jurisprudence. Institutional features of the overruling process, including the roles of third parties and Court-directed changes, are addressed. Conclusions are drawn as to the present Court's reluctance to expressly acknowledge that it is overruling established case law and its failure to always provide adequate justifications of the social or scientific developments underpinning its revised jurisprudence.
I wish to express my thanks to Daniel Church of Information Services, University of Nottingham, for undertaking a preliminary literature search and for the helpful comments of the Editor and the anonymous reviewer. Naturally, I am responsible for the content of this article.