Domestic Judicial Treatment of European Court of Human Rights Case Law

Beyond Compliance

David Kosař, Jan Petrov, Katarína Šipulová, Hubert Smekal, Ladislav Vyhnánek, Jozef Janovský

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367361167
• eBook ISBN: 9781000036596
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The European Court of Human Rights ("ECtHR") suffers from the burgeoning caseload and challenges to its authority. This two-pronged crisis undermines the ECtHR's legitimacy and consequently the functioning of the whole European human rights regime. Domestic courts can serve as welcome allies of the Strasbourg Court. They have a potential to diffuse Convention norms domestically, and therefore prevent and filter many potential human rights violations. Yet, we know very little about how domestic courts actually treat the Strasbourg Court's rulings. This book brings unique empirical findings on how often, how and with what consequences domestic judges work with the ECtHR's case law. It moves beyond the narrow concept of compliance and develops a new three-level methodology for analysing the role played by domestic courts in the implementation of ECtHR case law. Moreover, using the example of Czechia, it shifts the attention from Western countries to a more volatile Central and Eastern European region, which has recently witnessed democratic backsliding and backlash against international checks on human rights and the rule of law standards. Looking at a wider social and legal context, this book identifies factors helping transitional countries to adapt to regional human rights regimes.

The work will be an essential resource for students, academics and policy-makers working in the areas of Constitutional law, Politics and Human Rights law. Its global appeal is enhanced by the methodological framework which is applicable in other international systems.

Part I

Implementation of the Strasbourg rulings

Theoretical framework

1 Architecture of the Strasbourg system of human rights

The authority of the European Court of Human Rights (ECtHR or Strasbourg Court) has changed profoundly since its establishment. At the beginning of its functioning, the Strasbourg Court faced the problem of a limited caseload and the reluctance of certain signatory parties to accept its jurisdiction. By the 1980s all signatory parties recognized the competence of the ECtHR to receive petitions from individuals, the number of applications rose exponentially, and the authority of the ECtHR increased significantly (Bates 2010; Madsen 2013, 2016). Towards the end of the millennium, the Strasbourg Court turned into a permanent international court with a caseload comprising tens of thousands of applications every year, a court representing “the most effective human rights regime in the world” (Stone Sweet and Keller 2008a, 11).

Nowadays, the ECtHR delivers rulings that deal with the crucial legal, political, and societal issues of our day and influences domestic legal orders of the Council of Europe (CoE) member states on a regular basis. In reaction to the judgments of the ECtHR, the CoE member states often amend legislation, change domestic case law, alter their public policies, and even revisit the fundamental features of their constitutional and political systems (Barkhuysen and van Emmerik 2005; Lambert-Abdelgawad 2008; Kosař 2012; Helfer and Voeten 2014; Kosař and Lixinski 2015; Kosař and Petrov 2018; Smekal and Vyhnánek 2018). This development allowed the former president of the Strasbourg Court Rolv Ryssdal to claim that the judgments of the Strasbourg Court had “not only generally but always been complied with by the Contracting States concerned” (Harris et al. 2014, 30).

However, a more detailed analysis of the situation shows that since the second half of the 1990s the overall rate of compliance with the ECtHR’s judgments has decreased (von Staden 2018),¹ and the Strasbourg human rights regime has witnessed more instances of lengthy compliance processes. Some of those processes resulted in partial or minimalist compliance and sometimes even in overt non-compliance with the ECtHR’s case law.²

This combination of floods of new cases and the growing resistance to the Strasbourg case law pushed the ECtHR between a proverbial “rock and a hard place”. On the one hand, signatory parties identified failures and delays in the execution and full implementation of the ECtHR’s judgments, resulting in a high number of repetitive cases and the overloading of the Strasbourg Court, as the major challenges for the practical functioning of the European Convention on Human Rights (ECHR or Convention) system.³ This voice calls for a more proactive implementation of Strasbourg jurisprudence and more profound changes to domestic legal systems. On the other hand, the increasing impact of the Strasbourg Court on national legal systems led to the domestic criticism of the ECtHR, which is no longer limited to discontent with particular rulings only, but opens up the debates questioning the legitimacy of the Strasbourg Court as such (Flogaitis, Zwart, and Fraser 2013; Bates 2014; Gerards and Fleuren 2014, 3–6; Oomen 2016; Føllesdal 2016; Popelier, Lambrecht, and Lemmens 2016; Madsen 2019). More recently, this kind of criticism has been intensified by numerous populist leaders in Europe who portray the Strasbourg Court as a foreign elitist obstacle compromising the enforcement of authentic popular will (Petrov 2020). All these voices call for less intervention by the ECtHR into domestic law.

These two demands show that effective implementation of the ECtHR’s rulings is a critical point of the ECHR system’s architecture. The Strasbourg Court’s ability to induce systemic change of domestic policies is crucial both for its legitimacy and the practical functioning of the entire Convention system. At the same time, however, it seems to be one of the most challenging and controversial features of the system. The current implementation crisis shows that the ECtHR, despite being labelled as the most effective international human rights court in the world (Stone Sweet and Keller 2008a, 11), is still only an international court with no influence over “either the sword or the purse” (Hamilton 2003, 464). International courts are empowered to interpret the law in their rulings, but they have no power to execute their rulings and have only a few formal instruments to force governments to comply with their rulings (Koh 1999; Hathaway and Shapiro 2011).

1.1 The domestic effects of the Strasbourg case law

The Strasbourg Court’s case law has had a major influence on the domestic law of most of the CoE member states in various areas (Algan 2008; Krisch 2008; Johnson 2010; Helfer and Voeten 2014; Hillebrecht 2014a; Kosař 2018).⁴ The ECtHR’s judgments regularly influence not only the legal order of a respondent state, the direct addressee of the ECtHR’s ruling, but also provoke reforms in states which were not party to the proceedings. This section briefly explains the legal grounding of the ECtHR’s domestic impact. First, it discusses the inter partes binding force of the ECtHR’s judgments and the recent shift from the ECtHR’s classical remedial strategy to a more proactive specification of individual and general measures required from the “convicted” signatory parties. Subsequently, it deals with the doctrine of the res interpretata effect, which explains what normative implications the Strasbourg jurisprudence has for the states which were not party to the original dispute.

1.1.1 Inter partes binding force of the ECtHR’s judgments

The Convention contains several provisions regulating the execution of the ECtHR’s judgments. Article 41 ECHR grants the Strasbourg Court the power, if necessary, to award just satisfaction. Moreover, Article 46(1) ECHR requires the signatory parties to abide by the final judgment of the ECtHR in any case to which they are party. The effect of this provision reaches beyond the situation of a particular applicant who was successful at the Strasbourg Court. The Convention’s purpose was not only to redress concrete wrongs committed by the states, but also to secure a certain minimal standard of human rights protection within the territory of the parties to the Convention (Gerards 2014, 19).

As a result, Article 46(1) ECHR urges the states to respond to the ECtHR’s judgment in the case of the individual applicant, and on the general level, if necessary, in order to prevent future human rights violations of the same kind. Accordingly, the Strasbourg Court held that

As regards the requirements of Article 46, it should first be noted that a respondent State found to have breached the Convention or its Protocols is under an obligation to abide by the Court’s decisions in any case to which it is a party. In other words, a total or partial failure to execute a judgment of the Court can engage the State Party’s international responsibility. The State Party in question will be under an obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded.⁵

This means that the responding state faces three levels of obligations resulting from the “conviction” of the state by the Strasbourg Court: (1) the duty to pay just satisfaction to the injured party, if awarded by the ECtHR (Article 41 ECHR); (2) the duty to adopt individual measures; and (3) the duty to adopt general measures to avoid repetition of the rights violation. As the duty to pay just satisfaction does not require changes in the domestic law, we leave it aside. The necessity to adopt individual measures may in some instances be important for changes in the domestic legal order as compliance with certain individual measures might require systemic changes in the domestic law.⁶ However, it is the duty to adopt general measures that is essential for the purposes of this book, as it regularly implies not only amending domestic legislation, but also revisiting domestic case law and changing administrative practices. The ECtHR made clear that the member states have committed themselves to adjust their legal orders so that they comply with the Convention.⁷

The ECtHR often declares that it cannot engage in the abstract or concrete review of legislation and that it does not have the power to quash the piece of legislation in question. The Strasbourg Court therefore limits its review on the result of the law’s application and on declaring whether there was a violation of the Convention or not.⁸ This self-perception led to the ECtHR’s restrained approach towards remedies in which the Strasbourg Court has concentrated solely on finding a violation of the Convention and left the rest to the states. Under this traditional model of remedies, the ECtHR would not specify what measures should be taken to comply with its judgment as the domestic authorities would be seen as better placed to decide on the appropriate way to prevent repetition of the human rights violation (Hawkins and Jacoby 2010, 40; Hillebrecht 2012a, 281).⁹

This practice has changed though. In recent years, the Strasbourg Court has stepped beyond its classical remedial strategy and started indicating more specific individual and also general measures (Leach 2013; Jahn 2014; Keller and Marti 2015), which can have further implications for implementation processes. On the one hand, indication of remedial measures can facilitate implementation as it assists the domestic actors in interpreting what the Strasbourg judgment requires domestically (Stiansen 2019a). On the other hand, the specific remedial measures are more intrusive and regularly increase demands on the states parties, which can lead to further challenges of the ECtHR’s authority and create additional implementation difficulties. Furthermore, specification of general measures by the ECtHR and subsequent compliance with them is the essential element of the pilot judgment procedure.¹⁰ In fact, the pilot judgment procedure aims at disposing of a large number of similar cases in order to reduce the ECtHR’s backlog, which inevitably requires general measures on the state level.

However, the pilot procedure focuses only on cases emanating from the same signatory party. It is an important tool for increasing the effectiveness of the Strasbourg system, but it would hardly be sufficient to reduce the backlog of the ECtHR’s cases in itself. In order to ensure the effectiveness of the Strasbourg system, the ECtHR’s case law needs to be taken into account also by the signatory parties that were not a party to the case adjudicated by the ECtHR. This brings us to the doctrine of the res interpretata effect.

1.1.2 Res interpretata effect

The case law of the ECtHR is binding for the parties to a particular dispute. Regarding these parties, the judgment of the ECtHR gains the status of res judicata. The impact of the Strasbourg Court, however, is broader and reaches beyond the states which were parties to the proceedings. In fact, the ECtHR judgments often influence legal orders of the states which were not the direct addressees of the rulings, and thus de facto have an erga omnes effect. For instance, Ireland, Latvia, and Cyprus changed their regulation of prisoners’ voting rights in response to the Hirst (no. 2) v. the United Kingdom judgment.¹¹ The Grand Chamber judg...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Preface
• Acknowledgements
• About the authors
• List of abbreviations
• List of judicial cases
• Introduction
• PART I: Implementation of the Strasbourg rulings: Theoretical framework
• PART II: Judicial treatment of Strasbourg case law: A case study on Czechia
• PART III: Broader repercussions
• Appendix
• Index