The Gazette 1992

GAZETTE

NOVEMBER 1992

Case Law of the European

Court of Human Rights,

volume II 1988-1990. By Vincent

Berger, [xiv + 291 pp, Dublin. The

Round Hall Press, 1992, IR£37.50.]

In the spacious domain of

constitutional jurisprudence, the

European Court of Human Rights

holds a special place. In the litigious

make-up of the Irish, there is a deep

respect for the courts associated with

the European Communities and the

Council of Europe. However, in

particular, the European Court of

Human Rights is regarded by many

today as one of the principal

moulders of the liberal faith. The

casebook of Dr. Berger, Head of

Division at the Registry of the

European Court of Human Rights

and Professor at the College of

Europe at Bruges, is a testament to

the success of the first international

court of fundamental rights.

The executive branch of government

in Ireland should be reminded that

prior to the signing of the European

Convention on Human Rights in

Rome on November 4, 1950, the

Irish representatives in the

Committee of Ministers and in the

Consultative Assembly of the

Council of Europe had been

prominent in urging that the present

Convention did not go far enough in

protecting human rights and

fundamental freedoms. [See File

S. 14921A, Department of the

Taoiseach, National Archives,

Dublin]. In a memorandum for the

Government, the Department of

External Affairs in April, 1951 stated

that the Attorney General was of the

opinion that if a citizen obtained on

recourse to the Commission or the

Court some relief which was denied

by our Courts, the prerogative of

mercy or executive action of the like

kind would be available to give effect

to any compromise arrived at before

the Commission or to any ruling of

the Court. The memorandum for the

Government was quite optimistic in

stating that the Irish would have no

need to have recourse to the

Convention:

"[T]he likelihood of this country

being brought before the Commission

or the Court is very remote, as all the

'rights' set out in the Convention are

already conceded here. Furthermore, it

is to be noted that the Convention

itself qualifies such rights by

restrictions of a far-reaching nature".

[See Memorandum for Government

dated April 6, 1951 in File S.14921A,

Department of the Taoiseach,

National Archives, Dublin].

Dr. Berger provides summaries of

the seventy-two decisions handed

down by the Court in the three-year

period covered in this volume. Judge

Walsh, judge of the European Court

of Human Rights, has written the

foreword to the book. The author

and Judge Walsh note the ever-

increasing case load of the Court.

The cases in the present volume

relate to many diverse aspects of

fundamental rights including

freedom of expression, freedom of

religion, freedom of religious

observance and freedom to

demonstrate. The

Norris

case

concerning the Irish legislation which

penalises certain homosexual acts

carried out in private between

consenting adult males is also

included. Executive action is still

awaited in relation to this case which

involved a breach of Article 8 of the

Convention (respect for private life).

A useful addition to the book is a

summary bibliography at the end of

each case. There is also a general

bibliography. The text of the

Convention and the various

Protocols are also set out in an

appendix.

Dr. Berger has provided a

magnificent service to lawyers in

presenting in a succinct manner the

summaries of the decisions handed

down by the Court betwen 1988 and

1990. Without human rights and

fundamental freedoms, civilisation

dies. Lawyers should ensure that

rights are not lost through any form

of neglect on their part. Dr. Berger's

book is highly recommended.

Eamonn G. Hall

Harmonisation of Trade Mark

Laws in the European

Communities

Published by the European

Communities Trade Mark

Practitioners' Association, 1991,

127pp. £20.

The report is the seventh in the

series of reports of conferences

organised by the European

Commjunities TVade Mark

Practitioners' Association (ECTA).

These conferences take as their

theme a particular aspect of trade

mark law or practice. The Report

relates to a conference held in

Dublin in May, 1990. The theme of

the Conference was harmonisation of

trade mark laws in the European

Communities. It consists of the

papers read at the Conference by

various trade mark practitioners in

the EC and an official of the

European Commission.

There is a fairly comprehensive

review by the Commission official of

the history of the First Council

Directive of the 21 December, 1988

to approximate the laws of Member

States relating to trade marks ( " The

Directive"). There follows a paper

concerning certain aspects of Article

5 of the Directive and papers from

trade mark practitioners from the

UK, Spain, France, Denmark,

Germany and Italy who outline

progress in their respective

(Cont'd on page 346)

344