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‘The European Court of Human Rights and the national courts – giving shape to the notion of ‘shared responsibility’, in: J.H. Gerards & J.W.A. Fleuren (eds.), Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law. A comparative analysis (Antwerp: Intersentia 2014) pp. 13-94



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A comparative analysis
. ntersentia
Cambridge Antwerp - Portland
Janneke Gerards and Joseph Fleuren
the light of the objectives of the project, it is investigated to what extent the claim
holds that the Court compels national courts to adopt certain judicial strategies
and to accept the Court's interpretations, and to what extent the Court leaves
leeway to the states to follow their own course. To this end the chapter also
presents an analysis of the Court's efforts to co-operate with the national courts
by means of a dialogue between judges. Finally, attention is paid to the way in
which the Court has responded to the national criticism on its judgments.
Chapters 3-8 present the studies into the impact of the Convention and the
Court's case-law on national case-law, the constitutional mechanisms used for
the implementation of the Convention and the impact of criticism on the courts'
application of fundamental rights provisions and precedents. The structure of
the chapters is similar, as they are all based on the same questionnaire. Each
chapter contains a descriptive analysis of national constitutional mechanisms for
giving effect to international law more generally and to the ECHR more
specifically, of the way in which these constitutional mechanisms are applied in
practice by the national courts (in particular in cases relating to ECHR rights),
and of the scope and nature of the criticism that has been directed at the ECHR
and the ECtHR. Each chapter also contains a concluding section which reflects
f on the central questions of the project.
Chapter 9 brings together the findings of chapters 2-8, searching for
interrelationships and connections and looking for answers to the main
questions of this project. The chapter compares the constitutional mechanisms
for the implementation of the ECHR (and international law more generally),
paying attention to the status of the ECHR in the national hierarchy of norms as
well as the ways in which the ECHR can have effect in national case-law.
Subsequently, the chapter focuses on the implementation of the judgments and
decisions of the ECtHR, addressing the requirements imposed by the ECtHR as
well as their implementation in the legal orders of the six states compared. This
chapter further discusses the impact of debates and controversies regarding the
judgments of the ECtHR and their implementation by national courts. The
comparative synthesis is concluded by a section answering the central questions
of this study.
As was mentioned in the introduction of this book, the case-law of the European
Court of Human Rights (ECtHR or Court) has considerable impact on national
case-law and this impact has sometimes given rise to (severe) criticism of the
Court s work. The national reports in chapters 3-8 of this volume explain how
domestic courts in six Western European states have generally responded to the
Court's case-law and how they deal with the principles and techniques of
interpretation developed in the Court's case-law. Moreover, these chapters
address the nature and intensity of the criticism of the Court's work and position,
as well as the national effects thereof.
The present chapter aims to illuminate ^fie other side of the issue, i.e. the
Court's own relationship with the domestic courts. In the light of the objectives
of the present book, the questions raised are how and to what extent the Court
obliges national courts to adopt its argumentative methods and principles; how,
to what extent and by which means it respects national particularities and
traditions; and how it has responded to national political and judicial criticism.
By answering these questions and explaining the principles and methods of
interpretation that are typical of the Court's case-law, the chapter first aims to
provide a general basis for the national reports, the particular objective being to
illuminate the way the Court uses these methods and principles to interact with
national authorities. This will make it possible to assess to what extent the Court
gives the national courts leeway to give shape to Convention terms and
provisions as they see fit.
Secondly, the chapter aims to analyse and explain the relationship of the
Court with the national courts. Special focus is placed thereby on the notions of
Janneke Gerards
shared responsibility' and the notion of (judicial) dialogue, as these notions can
help to understand how the Court aims to position itself vis-a-vis the states. In
turn, this makes it possible to answer the question of whether the Court really
wants the national courts to copy its own argumentative approaches and act as
marionettes, as sometimes seems to be assumed, or rather has very different
The research conducted for the purposes of this chapter included an analysis
of relevant case-law of the Court of the past fifteen years and of the pertinent
literature. To give more depth to the analysis of the various methods and
mechanisms, interviews were conducted in September 2012 with six judges and
three registrars of the Court. It was agreed with the judges and registrars that
their input into the research project would be kept anonymous. Therefore, the
insights derived from the interviews are incorporated in the form of a general
explanation of the Court's use and application of various methods and its
response to national criticism. The questions presented to the interviewees are
annexed to this chapter.
The findings of the case-law analysis and the interviews are presented in an
integrated manner. To provide a solid foundation for the specific methods,
techniques and doctrines used in the Court's reasoning, this chapter starts with
a brief survey of the basic tasks of the Court and the general principles
underlying its work, as well as their interaction (section 2). A separate section
(section 3) is then devoted to the obligations and requirements the Court has
imposed on the national courts. Section 3 also explores the notion that is central
to this report, viz. the notion of 'shared responsibility' between national courts
and the ECtHR for the protection of the Convention. Subsequently, sections 4, 5
and 6 focus on a number of principles, methods and techniques the Court uses
in its reasoning, with special attention to their function in the relationship
between the Court and the national authorities. Section 4 focuses on the
meaning and development of the principles of evolutive interpretation, of
effective protection of fundamental rights, and of autonomous interpretation.
These principles are said to have inspired the great expansion of the Court's case-
law and they appear to lie at the very heart of most of the criticism aimed at the
Court. Attention is thereby also paid to the methods of consensus argumentation
and meta-teleological reasoning. Section 5 highlights two methods of
argumentation that are of particular relevance to the impact of the Courts case-
law, viz. procedural review and the use of shallow and narrow reasoning.
Section 6 addresses the notion of judicial dialogue and the way it has found its
way into the case-law and the working methods of the ECtHR. Finally, section 7
discusses the Court's particular responses to the national criticism of it, based
on the information derived from the interviews held in the Court. A resume of
the most important findings of the report, as well as some concluding remarks,
can be found in section 8.
Chapter 2. The European Court of Human Rights and the national courts
The Court operates in a highly complex context. It is asked to hand down
binding judgments in thousands of cases brought by individuals from all over
Europe. These cases are of a widely varying nature - they may relate to racial
violence,1 the loss of a social security benefit,2 or a prohibition of pre-natal
screening of embryos.3 In all these cases, the Court must determine which
interferences amount to genuine violations of fundamental rights, which cannot
be condoned, and which interferences cannot be regarded as acts that contravene
the Convention. In doing so, the Court must continuously pay heed to national
diversity and national sovereignty - after all, the Court is 'only' an international
court with a subsidiary position.
As mentioned above, the objective of this chapter is to analyse how the Court
deals with the complexities of its situation and how it interacts with the national
courts This can only be done, however, if the basic principles governing the
Court s work and their interrelationship are well-understood. For that reason,
this section provides a brief summary of the main principles underlying the
Convention, focusing on the influence they may have on the Court's
jurisprudence. Based on this brief survey, attention is subsequently paid to the
push' and pull' factors determining the Court's relationship with the national
The Court's major task is to come to the assistance individuals who have been
harmed by violations of their fundamental rights by national governments or
government agents.4 As a completely external, independent and uninvolved
' See e.g. Fedorchenko and Lozenko v. Ukraine, ECtHR 20 September 2012, appl. no. 387/03.
See e.g. Czaja v. Poland, ECtHR 2 October 2012, appl. no. 5744/05.
3 See e.g. Costa and Pavan v. Italy, ECtHR 28 August 2012, appl. no. 54270/10.
This is generally regarded as the most important function of the Court, which is always
emphasised in reports related to the Court's reform; see e.g. P. LEACH, 'On reform of the
European Court of Human Rights', 6 European Human Rights Law Review (2009) pp. 725-
735; H. KELLER, A. FISCHER and D. KUHNE, 'Debating the Future of the European Court of
Human Rights after the Interlaken Conference: Two Innovative Proposals', 21 European
Journal of International Law (2010) pp. 1025-1048; Report of the Committee of Minister's
Steering Committee for Human Rights (CDDH) on measures requiring amendment of the
European Convention on Human Rights (Strasbourg, February 2012, CDDH(2012)R74
Addendum I). See also H. KELLER and A. STONE SWEET, "Introduction: The Reception of the
ECHR in National Legal Orders', in H. KELLER and S. STONE SWEET, eds., A Europe of Rights.
The Impact of the BCHR on National Legal Systems (Oxford, Oxford University "Press 2008)
pp. 3-28 at p. 11.
Janneke Gerards
institution, the Court is well placed to decide whether a state has failed to comply
with its obligations under the Convention. The essential function of individual
protection of fundamental rights may explain many of the Court's interpretative
approaches and techniques. The Court regards it as its primary role to assess all
individual cases on their merits, looking at the particular circumstances of the
case to evaluate whether there is a violation.5 This finds its expression in a
strongly case-based case-law in which "judicial minimalism' and ad hoc
balancing play an important role - the Court primarily decides its cases based
on consideration of'all circumstances of the case' (see below, section 5.3). As a
corollary, the Court demands that the national authorities, in their role as
primary guarantors of fundamental rights, offer such individual protection at
the domestic level. Increasingly, the Court requires judicial review in concrete
cases and rejects general legislation or blanket rules that do not allow for
concretisation. This is further elaborated below in section 5.2.
The second function of the Court is to determine a minimum level of
protection of fundamental rights which should be guaranteed in all Convention
states." This function is expressed clearly in the text of the Convention: the
Preamble stresses the importance of a system of collective enforcement of
^ fundamental rights.7 Given the fundamental character of the Convention rights,
it would not be acceptable if their exercise were to depend on where the
individual happens to live. Someone living in the Ukraine should have an equal
right to remain free of torture or discrimination, or to express himself freely, to
someone living in the Netherlands or in France.8 Only a central institution such
as the ECtHR can uniformly establish the meaning of fundamental rights and
define a minimum level of fundamental rights protection that must be
guaranteed in all the states of the Council of Europe. This means that the Court
has an essential role to play in standard-setting, even if states may always provide
additional protection (Article 53 ECHR).9 The Court has explained the
consequences of this function for its case-law in the case of Soering v. United
5 See already Sunday Times v. UK, ECtHR 26 April 1979, appl. no. 6538/74, para. 65.
6 Cf. f.H.H. WEILER, The Constitution of Europe (Cambridge, Cambridge University Press
1999) at p. 105; I.W. NICKEI, Making Sense of Human Rights, 2nd edn. (Maiden, Blackwell
7 See also T. HAMMARBERG, 'The Court of Human Rights versus the "Court of Public
Opinion'", in How can we ensure greater involvement of national courts in the Convention
system?. Dialogue between judges (European Court of Human Rights, Council of Europe
2012) pp. 30-36 at p. 31.
8 Cf. WEILER, supra n. 6, p. 105; D. GALLIGAN and D. SANDLER, 'Implementing Human Rights',
in S. HALLIDAY and P. SCHMIDT, eds., Human Rights Brought Home. Socio-Legal Studies of
Human Rights in the National Context (Oxford, Hart 2004) p. 31; NICKEL, supra n. 6. at p.36.
9 A. STONE SWEET, 'The European Convention on Human Rights and National Constitutional
Reordering', 33 Cardozo Law Review (2012) pp. 1859-1868, calling this the Court's 'oracular'
or law-making function.
Chapter 2. The European Court of Human Rights and the national courts
87. ... the object and purpose of the Convention as an instrument for the protection
of individual human beings require that its provisions be interpreted and applied so
as to make its safeguards practical and effective ... In addition, any interpretation of
the rights and freedoms guaranteed has to be consistent with "the general spirit of
the Convention, an instrument designed to maintain and promote the ideals and
values of a democratic society".'10
This means that the Court cannot limit its work to deciding individual cases on
their merits. In accordance with Article 32 of the Convention, the Court has
continually stressed that its task is 'not only to decide those cases brought before
the Court but, more generally, to elucidate, safeguard and develop the rules
instituted by the Convention'.11 The notion of providing a minimum level of
protection and the need to provide generally applicable interpretations informs
many of the argumentative approaches adopted by the Court, especially the
evolutive and autonomous interpretation of the Convention. These general
principles and doctrines are illuminated in section 4.2. Moreover, the unifying
approach of the Court can only be effective if it is endorsed by national courts,
i.e. if national courts are willing to apply the Court's interpretations, based on
these general interpretative principles, within their own national legal systems.
Albeit rather implicitly, the Court has accepted that national courts should
follow the Court's argumentative approach and they should apply the
interpretations and standards expressed in its case-law. This particular fact,
which relates to the so-called res interpretata effect of the Court's judgments, is
discussed separately in section 3.2.
Guided by the Court's standards, it is the national authorities' task to guarantee
the Convention rights and to protect them at a level that is at least equal to that
provided by the ECtHR. The Court has stated time and again that the national
authorities are generally better placed than the Court to make policy choices and
protect fundamental rights in a way that fits well with national law and national
constitutional traditions.12 Moreover, the Court has stressed that the principle of
subsidiarity means that the national authorities should offer primary
10 Soering v. UK, ECtHR 7 July 1989, appl. no. 14038/88; see also, more recently, Rantsev v.
Cyprus and Russia: 'Although the primary purpose of the Convention system is to provide
individual relief, its mission is also to determine issues on public-policy grounds in the
common interest, thereby raising the general standards of protection of human rights and
extending human rights jurisprudence throughout the community of the Convention States'
(ECtHR 7 January 2010, appl. no. 25965/04, para. 197).
" e.g. Ireland v. UK, ECtHR 18 January 1978, appl. no. 5310/71, para. 154.
12 See already Handyside v. UK, ECtHR 7 December 1976, appl. no. 5493/72, para. 48.
Janneke Gerards
protection.13 This principle of primarity is of great importance, as it defines the
Court's own role, which is first and foremost one of supervision.14 Both the
principle of subsidiarity and that of primarily will even be laid down in the
Preamble to the Convention following the entry into force of Protocol No. 15.15
In addition, it is important to recall that the ECtHR is a court and, as a
consequence, it has to operate under the same constitutional restrictions that are
in effect in national courts.16 Accordingly, it has accepted that it should respect
the notion of the separation of powers and it should not stretch the rights and
obligations under the Convention to the extent that de facto new norms are
Finally, the Court has constantly demonstrated its awareness of national
diversity and has tried to respect deeply felt national sensitivities and national
(legal, political and social) traditions. It has thereby always accepted and stressed
its subsidiary role, as is apparent from one of its earliest landmark cases, the
Belgian Linguistics case of 1968:
'[T]he Court cannot disregard those legal and factual features which characterise the
life of the society in the State which, as a Contracting Party, has to answer for the
# measure in dispute. In so doing it cannot assume the role of the competent national
authorities, for it would thereby lose sight of the subsidiary nature of the international
machinery of collective enforcement established by the Convention. The national
authorities remain free to choose the measures which they consider appropriate in
those matters which are governed by the Convention. Review by the Court concerns
only the conformity of these measures with the requirements of the Convention.'18
These considerations highlight the impact of the subsidiarity principle on the
Court's argumentation methods, which has been further developed in
subsequent case-law. The Court will only accept new interpretations or apply
13 See F. TULKENS, How can we ensure greater involvement of national courts in the Convention
system? Dialogue between judges (European Court of Human Rights, Council of Europe
2012) pp. 6-10 at pp. 6-7. See especially Fabris v. France, ECtHR (GC) 7 February 2013,appl.
no. 16574/08, para. 72: 'where the applicant's pleas relate to the "rights and freedoms'
guaranteed by the Convention the courts are required to examine them with particular
rigour and care and . .. this is a corollary of the principle of subsidiarity'.
14 See e.g. Demopoulos and Others v. Turkey, ECtHR (GC) 1 March 2010 (dec.), appl. nos.
46113/99 and others, para. 69. On the principle of 'primarily', see also in extenso J.
CHRISTOPFERSEN, Fair Balance: Proportionality, Subsidiarity and Primarity in the European
Convention on Human Rights (Leiden/Boston, Martinus Nijhoff Publishers 2009).
15 Protocol No. 15 introduces a paragraph to the preamble to the Convention in which both the
principle of subsidiarity and the primary responsibility of the states are emphasised.
16 See e.g. C. MCCRUDDEN, "Judicial Comparativism and Human Rights', in E. ORUCU and
D. NELKEN, cds., Comparative Law: A Handbook (Oxford, Hart 2007) pp. 371-398 at p. 376.
17 See e.g. Quark Fishing Ltd. v. UK, ECtHR 19 September 2006 (dec.), appl. no. 15305/06, para.
18 Belgian Linguistics Case, ECtHR 23 July 1968, appl. no. 1474/62, para. I.B.10. See also
CHRISTOFFERSEN, supra n. 14, at p.248.
Inters entia
Chapter 2. The European Court of Human Rights and the national courts
intensive scrutiny to a justification if there is sufficient consensus on a certain
topic, or if the Court is at least as well placed as the national authorities to decide
a case.19 It will also usually leave a margin of appreciation to the case, applying a
deferential test that leaves sufficient leeway to the states to take their own
decisions and express their own policy preferences.20 Moreover, the principle of
subsidiarity leads the Court to apply such methods as autonomous interpretation,
procedural review and case-based decision making to minimise intrusion into
national policy and domestic law.21 This leaves the national authorities, including
the national courts, with much freedom to decide how they want to comply with
the Convention obligations. This freedom is limited, however, by the main
objective of the Convention, viz. the objective to provide effective protection to
fundamental rights. In its case-law, the Court may applaud national authorities
for the way they have dealt with fundamental rights issues, but it may also be
very critical of the remedies and guarantees offered to individuals. By
formulating positive procedural obligations, the Court may encourage the states
to respect the Convention, while permitting the Court itself to remain at a
distance and exercise only deferential, substantive review.
The basic principles governing the Court's work can be easily derived from what
was discussed in the previous subsections.22 In order to provide effective
enjoyment of fundamental rights, which is the core objective of the Convention:
(1) states have the primary obligation to respect and protect Convention rights;
(2) the minimum level of protection they have to guarantee is determined by
the ECtHR, which is competent to interpret the Convention;
(3) the Court has a supervisory role and can decide if the states have complied
with their obligations in individual cases.
Theoretically, the three functions of the Court and the ECHR system of
supervision, as well as these main principles, are complementary. In practice,
however, such complementarity appears to be very difficult to achieve. National
sovereignty and deeply felt national constitutional values may result in strong
disagreement with the level of protection the Court has defined. It is often
19 Cf. STONE SWEET, supra n. 9, at p.1863.
20 See infra, section 3.4.
21 See infra, sections 4 and 5.
22 For similar summaries, see STONE SWEET, supra n. 9, at p. 1861 and HAMMARBERG, supra n. 7,
at pp.30-31.
Janneke Gerards
stressed that fundamental rights can be guaranteed and protected in different
ways, and that a particular national situation may merit a special interpretation
or justify special restrictions on their exercise.23 Indeed, it has sometimes been
argued that the Court's legitimacy depends on its preparedness to respect the
diversity of fundamental rights standards in Europe.24 Others have argued
that such differences should not be taken into account, since it is only the
effectiveness of the Convention rights that counts.25 Thus, there appears to be
an almost inherent conflict between its task to provide effective protection of
the Convention, and the need to respect national values and national
In reality, rather than complementarity there seems to be an unavoidable
tension between the national desire to protect fundamental rights in a way the
state thinks fit (which could be regarded as the Court s pull factor ), and the
ECtHR's task to supervise the compliance of national fundamental rights
protection with the Convention (the Court's push factor').27 Indeed, much of the
national criticism of the Court can be traced back to this tension, which also
underlies and informs all of the Court's interpretative activities, as well as the
extent to which it is able to influence national judicial decision making. For that
reason, the push and pull factors of the Convention system figure prominently in
this report as a background to the analysis of the Court's activities.
23 See e.g. S. GREEK, The European Convention on Human Rights. Achievements, Problems and
Prospects (Cambridge, Cambridge University Press 2006) p. 224; J.H. GERARDS, 'Pluralism,
Deference and the Margin of Appreciation Doctrine', European Law Journal (2011) pp.
80-120; Y. ARAI-TAKAHASHI, The Margin of Appreciation Doctrine and the Principle of
Proportionality in the Jurisprudence of the ECHR (Antwerp, Intersentia 2002) p. 241; P.
MAHONEY) 'Marvellous Richness of Diversity or Invidious Cultural Relativism?', 19 Human
Rights Law Journal (1998) p. 1 at p. 12; A. OSTROVSKY, 'What's So Funny About Peace, Love,
and Understanding? How the Margin of Appreciation Doctrine Preserves Core Human
Rights within Cultural Diversity and Legitimises International Human Rights Tribunals',
1 Hanse Law Review (2005) p. 47 at p. 57.
24 J.V.A.G. PIRET, 'Limitations of Supranational Jurisdiction, Judicial Restraint and the Nature
of Treaty Law', in J. TEMPERMAN, ed., The Lautsi Papers: Multidisciphnary Reflections on
Religious Symbols in the Public School Classroom (Martinus Nijhoff Publishers, Leiden 2012)
pp. 59-89 at p. 77.
25 On this, see e.g. J.A. SWEENEY, "Margins of Appreciation: Cultural Relativity and the
European Court of Human Rights in the Post-Cold War Era', 54 International Comparative
Law Quarterly (2005) p. 459; G. LETSAS, A 'Theory of Interpretation of the European
Convention on Human Rights (Oxford, Oxford University Press 2007) p. 123.
26 See also M. DELMAS-MARTY, Ordering Pluralism. A Conceptual Framework for Understanding
the Transnational Legal World, trans. N. NORBERG (Oxford/Portland, Hart Publishing 2009)
and H.P. GLENN, Legal Traditions of the World, 4th edn. (Oxford, Oxford University Press
27 See for this terminology also M. ANDENAS and E. BIOKGE, 'National Implementation of
ECHR Rights; Kant's Categorical Imperative and the Convention', University of Oslo Faculty
of Law Legal Studies Research Paper Series, No. 2011-15, <>
pp. 7 and 8.
Chapter 2. The European Court of Human Rights and the national courts
Section 2 has discussed the main principles of the Convention system and has
explained that these principles are only rarely complementary. In most cases,the
Court has to deal with a certain amount of tension between the need to provide
effective protection of the Convention and the need to respect national sovereign
powers and national constitutional values. There is more to be said about the
Court s role, however, than only that it has to deal with a situation of tension and
complexity. Important other elements defining the Court's present position and
jurisprudential approach are the development of the so-called doctrine of res
interpretata (i.e. the binding character of the Court s interpretations as part of
the states' Convention obligations) and the development of particular obligations
for national courts under the Convention. This section explains that the
combination of these various aspects of the Convention means that, in the
Court's view, the national courts and the Court have a 'shared responsibility' to
protect the Convention. It is from this perspective of shared responsibility that
many of the obligations, interpretations and standards imposed on the national
courts can be understood, as is further explained in sections 4 and 5. In turn, the
notion of shared responsibility also determines the amount of leeway the
national courts have in applying the Convention rights.
Section 3.2 of this chapter sets out the legal notions and concepts informing
the notion of shared responsibility, i.e. the notions that provide the foundation
for national judicial compliance with the Court's precedents. The obligations on
the national courts that actually result from the Convention and the Court's
case-law are then explored in section 3.3, as well as the question of how and to
what extent the Courts margin of appreciation doctrine might be relevant to the
national courts' work (section 3.4). This is particularly relevant given the focus of
this book on the national implementation of Convention obligations and the
extent to which national courts are obliged by the Court to behave in a certain
way. By way of conclusion, the notion of shared responsibility is further
explained in section 3.5.
The Court's judgments are officially only binding on the parties to the case (see
Article 46 of the Convention). Thus, strictly speaking, if a violation has been
found in a case against the Netherlands, the other 46 States Parties do not have
Janneke Gerards
to comply with the judgment or even bother to read it.28 If a state refuses to
accept a judgment handed down in a case to which it was not a party, there are
no means to force the state to accept it. The only option is for an individual
citizen to lodge an application regarding the same matter against his own
government, thus triggering the Court to hand down a judgment that is binding
on the state in question.29 It has become accepted, however, that this limitation
of the binding effect of the Court's judgments is only relevant in the concrete
evaluation of an alleged violation and its justification, i.e., the operative part of
the judgment.30 The Court's interpretations of the notions contained in the
Convention are of a general nature and they can be regarded as determining the
meaning of the various terms and concepts contained in the Convention.31 In
the Interlaken Declaration of 2010, the European government leaders even
committed themselves to 'taking into account the Court's developing case-law,
also with a view to considering the conclusions drawn from a judgment finding a
violation of the Convention by another State, where the same problem exists
within their own legal system'.32 Indeed, a different view of this would be
difficult to reconcile with the Court's function of creating a uniform minimum
level of protection throughout Europe. This function requires at the very least
28 Cf. E. KLEIN, "Should the binding effect of the judgments of the European Court of Human
Rights be extended?, in P. MAHONEY, ed.. Protecting Human Rights: the European Perspective
(Koln, Heymanns 2000) pp. 705-713 at p. 706; G. RESS, 'The Effect of Decisions and
Judgments of the European Court of Human Rights in the Domestic Legal Order', 40 Texas
International Law Journal (2005) p. 359 at p. 374.
29 See, in particular, S. BELJIN, 'Bundesverfassungsgericht on the status of the European
Convention of Human Rights and ECHR decisions in the German legal order. Decision of
14 October 2004', 1 European Constitutional Law Review (2005) p. 553 at pp. 558-559; RESS,
supra n. 28, p. 37.
30 Cf. L. GARLICKI, 'Controle de constitutionnalite et controle de conventionalite. Sur Ie
dialogue des juges, in La conscience dos droits. Melanges en Ihonneur de fean-Paul Costa
(Paris, Dalloz 2011) pp. 271-280 at p. 280 and, in the same volume, A. DRZEMCZEWSKI,
'Quelques reflexions sur lautorite de la chose interpretee par la Cour de Strasbourg', pp. 243-
248 at p. 246.
31 See already S.K. MARTENS, CHet Europees Hofvoor de Rechten van de Mens en de nationale
rechter', NICM-Bulletin (2000) p. 756 at p. 756, and ;. VELU, 'Considerations sur quelques
aspects de la cooperation entre la Cour europeenne des droits de 1'homme et les juridictions
nationales', in P. MAHONEY et al., eds., Protecting Human Rights: The European Perspective
(Koln, Carl Heymanns Veriag 2000) pp. 1511-1525 at p. 1521; this was expressly recognised by
the Parliamentary Assembly of the Council of Europe in 2000: 'The principle of solidarity
implies that the case-law of the Court forms part of the Convention, thus extending the
legally binding force of the Convention erga omnes (to all the other parties). This means that
the states parties not only have to execute the judgments of the Court pronounced in cases to
which they are party, but also have to take into consideration the possible implications which
judgments pronounced in other cases may have for their own legal system and legal practice
(PACE Resolution 1226/2000, Execution of judgments of the European Court of Human Rights,
28 September 2000 (30th Sitting), para. 3). See also M. MARMO, "The Execution of Judgments
of the European Court of Human Rights - A Political Battle, 15 Maastricht Journal of
European and Comparative Law (2008) pp.235-258 at p.242-243.
32 High Level Conference on the Future of the European Court of Human Rights, Interlaken
Declaration, 19 February 2010 - Action plan, para. B.4.c.
Chapter 2. The European Court of Human Rights and the national courts
the acceptance that an interpretation given in one case, which establishes a
certain minimum level of protection, is equally pertinent and applicable in all
similar cases.
this effect, which is commonly called the res interpretata of the Court's
interpretations, has expressly been embraced and underlined by the Court,33 as
witnessed by the lists of general interpretative principles with which the Court
habitually starts its judgments on the merits.34 Only after setting out well-
established case-law and stressing the general applicability of certain
interpretations, will the Court apply these general principles and standards to
the facts of the case.35 In addition, the res interpretata effect is implicit in the
Court s acceptance of 'autonomous interpretations' of the Convention, which
means that an interpretation is given to Convention terms (e.g. 'tribunal' or
'family life') that is transversely applicable to all the states and does not depend
on the meaning of such terms in national law.36 Given such autonomous
interpretations and the transverse relevance of the Court s general principles of
interpretation, it is not surprising that it is now accepted that the states must
abide by them.37
The res interpretata effect of the Court's judgments implies that all national
authorities, including national courts, have to comply with the Convention as
explained by the Court in its case-law, even if their state was not a party to the
case in which a certain definition or application was given. Indeed, the aim of
establishing a uniform minimum level of protection of fundamental rights
Cf. Opuz v. Turkey, ECtHR 9 June 2009, appl. no. 33401/02, para. 163 and Rantsev v. Cyprus
and Russia, ECtHR 7 January 2010, appl. no. 25965/04, para. 197. See also GARLICKI, supra
n. 30, at p. 280; DRZEMCZEWSKI, supra, n. 30, at p. 246; C. VAN DE HEYNING, Fundamental
Rights lost in complexity (PhD thesis University of Antwerp 2011), available via <http://ir.>, p. 180.
34 See further on these lists e.g. J.H. GERARDS, 'Judicial minimalism and "dependency":
interpretation of the European Convention in a pluralist Europe', in M. VAN ROOSMALEN, et
a.1., cds.. Fundamental rights and Principles (Antweip,Intersentii2013) pp. 73-92, section 3.2;
F.M.J. DEN HOUDIIKER, Afweging van grondrechten in een veellagig rechtssysteem [Balancing
fundamental rights in a multi-layered legal system] (Nijmegen, WLP 2012) section 10.2.
35 See also infra, section 5.3.3.
36 See infra, section 4.2.3.
37 See the above-mentioned Interlaken Declaration, para. B.4.c. See further on the national
implementation and acceptance of this aspect of the Interlaken Declaration: CDDH, Drafting
Group A on the Reform of the Court (GT-GDR-A), Draft CDDH Report on measures taken by
the member States to implement relevant parts of the Interlaken and Izmir Declarations,
GT-GDR-A(2012)R2 Addendum 1, 7 September 2012,paras. 71-95.
Janneke Gerards
throughout Europe can only be realised if all national courts are prepared to
adopt the Court's interpretations of the Convention. However, as the national
reports in chapters 3-8 of this book show, the national courts may have different
competences to accommodate and facilitate the implementation of the Court's
interpretations in national law.38 Some national courts have the power to
implement ECtHR case-law directly in their national law, e.g. by means of
Convention-conforming interpretation of national law or even by setting aside or
disapplying national legislation if it conflicts with a specific ECtHR interpretation
of the Convention. Other national highest courts have more difficulty in
following the Court's lead, for example because they lack the competence to
review the conformity of national legislation with Convention rights.
In this respect, it is important to note that the Court has always held that the
Convention does not impose a certain constitutional structure on the states and,
more importantly, it does not require that the states make the Convention
directly enforceable through the national courts. As early as the case of Swedish
Engine Drivers' Union v. Sweden, the Court clarified that 'neither Article 13 nor
the Convention in general lays down for the Contracting States any given
manner for ensuring within their internal law the effective implementation of
any »f the provisions of the Convention'.39 In the case of James and Others v.
United Kingdom the Court specified that the Convention does not require direct
applicability of the Convention in the national courts:
The Convention is not part of the domestic law of the United Kingdom, nor does
there exist any constitutional procedure permitting the validity of laws to be
challenged for non-observance of fundamental rights. There thus was, and could be,
no domestic remedy in respect of the applicants' complaint that the [contested]
legislation itself does not measure up to the standards of the Convention and its
Protocols. The Court, however, concurs with the Commission that Article 13 does
not go so far as to guarantee a remedy allowing a Contracting State's laws as such to
be challenged before a national authority on the ground of being contrary to the
Convention or to equivalent domestic legal norms.'40
The Court s case-law on the national obligations to respect the Convention, as
interpreted by the Court, reflects an approach strongly oriented towards
international law. The state as such is responsible for compliance, as is apparent
from Article 1 of the Convention, which is an obligation of result.41 The states
See also STONE SWEET, supra n.9,at p.1866-1867; for further detail, see KELLER and STONE
SWEET, supra n. 4, and G. MARTINICO and 0. POLLICINO, eds., The National Judicial
Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective (Groningen,
European Law Publishing 2010).
Swedish Engine Drivers' Union v. Sweden, ECtHR 6 February 1976, appl. no. 5614/72, para. 50.
James and Others v. UK, ECtHR 21 February 1986, appl. no.8793/79, para. 85.
Cf. J. POLAKIEWICZ, 'The Status of the Convention in National Law', in R. BLACKBURN and
J. POLAKIEWICZ, cds., Fundamental Rights in Europe. The European Convention on Human
Chapter 2. The European Court of Human Rights and the national courts
remain free to decide how they want to meet this obligation, although the Court
generally requires the state to organise its internal structure in such a manner as
to be able to meet its treaty obligations.42 This is very clear from the case of
Assanidze v. Georgia, in which the Grand Chamber of the Court posited that:
'for the purposes of the Convention, the sole issue of relevance is the State's
international responsibility, irrespective of the national authority to which the breach
of the Convention in the domestic system is imputable'.43
Accordingly, the Court never expressly held that national courts (or, for that
matter, any other national organs, institutions or administrative bodies) should
have certain competences or be able to adopt certain approaches.
Nevertheless, the Court may condemn the state if a violation of the
Convention results from a lack of competence to disapply or nullify legislation
that is contrary to the Convention.44 This is readily apparent from the" Court's
case-law. In the case of Losonci Rose 6- Rose v. Switzerland,*5 the Swiss federal
court found that an Act of Parliament violated the principle of gender equality,
but it also noted that Parliament had expressly decided against an amendment of
the relevant legislation to bring it in line with the federal constitution. Under
Swiss constitutional law, this meant that the federal court lacked the competence
to make any modifications to the Act to bring it in line with the right to equal
treatment: Parliament's view had to prevail. The question arose before the Court
as to whether Switzerland could be blamed for this, since the federal court had
had no means to avoid the violation of the Convention. The Court gave a clear
answer, based'on the international law argument of state responsibility: 'Ceci [i.e.
the specific division of competences in Switzerland] ne change toutefois en rien
la responsabfllte internationale de la Suisse au litre de la Convention'.46
Consequently; it found a violation of the Convention. Although in subsequent
cases compliance with the conformity might be guaranteed by not adopting
legislation that violates fundamental rights in the first place, this judgment
might be regarded as an invitation to introduce a system of judicial review that
Rights and its Member States, 1950-2000 (Oxford, Oxford University Press 2000) pp. 31-53 at
p. 32-33.
Cf. KLEIN, supra n. 28, at p.709.
Assanidzev. Georgia, ECtHR 8 April 2004, appl. no. 71503/01, para. 146.
The Court has always stressed, for example, that neither Article 6 nor any other provision of
the Convention requires States to comply with any theoretical constitutional concepts
regarding the permissible limits of the powers' interaction' (Urban and Urban v. Poland,
ECtHR 30 November 2010, appl. no. 23614/08, para. 46); it usually adds to this, however, that
regardless of the constitutional system, '[t]he question is always whether, in a given case, the
requirements of the Convention are met'.
ECtHR 9 November 2010, appl. no. 664/06.
Idem, para: 50 ('This changes nothing as regards the international responsibility of
Switzerland under the Convention).
Janneke Gerards
allows the national courts to assess the Convention conformity of national
Furthermore, it is clear that the states are not completely free in meeting
their overall obligation to respect the Convention. Several judgments disclose
that the Court increasingly sets higher requirements for the national courts to
meet. In particular, it follows from cases such as Via and Puncernau v. Andorra
that the national courts are obliged to take the Convention into account in
interpreting national law and even national contracts.47 In this case the Court
found a violation of the Convention because the national courts had interpreted
a testamentary provision in accordance with the (supposed) intent of the testator.
The Court found this unacceptable, since the interpretation was contrary to the
non-discrimination principle laid down in the Convention. In quite general
terms, it held that national courts will always need to strive for an interpretation
that is in accordance with the Convention, and even that they thereby have to
adopt an evolutive approach:
62. The Court reiterates that the Convention, which is a dynamic text and entails
positive obligations for States, is a living instrument, to be interpreted in the light of
{^esent-day conditions ... Thus, even supposing that the testamentary disposition in
question did require an interpretation by the domestic courts, that interpretation
could not be made exclusively in the light of the social conditions existing when the
will was made or at the time of the testatrix's death, namely in 1939 and 1949 ...
Where such a long period has elapsed, during which profound social, economic and
legal changes have occurred, the courts cannot ignore these new realities ... [A]ny
interpretation, if interpretation there must be, should endeavour to ascertain the
testator s intention and render the will effective, while bearing in mind that "the
testator cannot be presumed to have meant what he did not say" and without
overlooking the importance of interpreting the testamentary disposition in the
manner that most closely corresponds to domestic law and to the Convention as
interpreted in the Court's case-law.'
It is clear from this ruling that the states can be held responsible for
interpretations and judgments of the national courts, and that the national
courts have to copy the Court's own evolutive approach to comply with the
minimum standards of the Convention.48
ECtHR 13 July 2004, appl. no. 69498/01. In similar vein, see Khurshid Mustafa and Tarzibachi
v. Sweden, ECtHR 16 December 2008, appl. no. 23883/06. See also, outside the sphere of
contractual obligations, Paulic v. Croatia, ECtHR 22 October 2009, appl. no, 3572/06, para.
42: no legal provision of domestic law should be interpreted and applied in a manner
incompatible with Croatia's obligations under the Convention'.
See also E. BIORGE, 'National supreme courts and the development of ECHR rights', 9
International Journal of Constitutional Law (2011) pp. 5-31, giving examples of cases from
which it appears that national courts must apply the principle ofevolutive interpretation; see
GARUCKI, supra n. 30, at p. 274-275; and, for more examples, C. DE KRUIF, Onderlinge
Chapter 2. The European Court of Human Rights and the national courts
Moreover, in the case of Fabris v. France, the Court's Grand Chamber held
that the national courts generally have an obligation to ensure that national
legislation is in conformity with the Convention.49 In particular, it held that this
imposes special requirements on the courts if a state has introduced new
legislation to implement an earlier judgment of the ECtHR. Such legislation
should comply with the state's Convention obligation, but the national courts
also have a special role in safeguarding Convention compliance:
This imposes an obligation on the domestic courts to ensure, in conformity with
their constitutional order and having regard to the principle of legal certainty, the
full effect of the Convention standards, as interpreted by the Court.'50
This consideration of the Court implies that, if states are confronted with
legislative provisions that can be interpreted in different ways, they should use
their interpretative competence to ensure that their case-law is in conformity with
the standards formulated by the ECtHR. Moreover, one may even read the case as
implying that national courts should set aside national legislation that clearly
conflicts with ECHR provisions as interpreted by the ECtHR.51
Hence, there are increasingly strong obligations in the Court's case-law on
national highest courts to refuse to apply national legislation that is contrary to
the Convention and to interpret such legislation in conformity with the Court's
case-law.52 Even if there is no general requirement to incorporate the Convention
in national law and allow individuals to invoke the Convention directly before
the national courts,53 this means that the Convention has a huge impact on
national law, national judicial decision making and national constitutional
division of competences.
3 4.1. Development and function of the margin of appreciation doctrine for the
In relation to the principle of subsidiarity, and given the push and pull factors
mentioned in section 2.4, the Court has developed its famous margin of
overheidsaansprakelijkheid voor schendingen van Europees recht [Mutual state responsibility
for violations of European Law] (Apeldoorn/Antwerpen, Maklu 2012) pp. 27 ff.
49 Fabris v. France, ECtHR (GC) 7 February 2013, appl. no. 16574/08, para. 72.
50 Idem, para. 75.
See further on this reading the case-note by GERARDS to the case in European Human Rights
Cases 2013/88 (in Dutch).
52 See also STONE SWEET, supra n. 9, at pp. 1866-1867.
53 Cf. e.g. RESS, supra n. 28,at p.374; VELU, supra n. 31, at pp. 1515-1516.
Janneke Gerards
appreciation doctrine.54 The existence of this doctrine can only be understood
against the background sketched in section 2. As mentioned there, the Court
acknowledges that the national authorities have the primary responsibility to
safeguard the Convention rights. As long as they respect the limits set by the
Convention and the case-law of the Court, i.e. as long as they do not fall below
the minimum level of Convention protection, they have great freedom to make
their own choices and decide which restrictions or exceptions are necessary and
reasonable. Indeed, as expressed in the Court's 'better placed' argument, they
are usually in the best position to make these choices and decisions.55 The
national authorities know the national circumstances and traditions best, they
have better means than the Court has to gauge public and political support for
decisions in delicate socioeconomic fields, and they can better appraise the
pertinent individual and general interests.
The 'better placed' argument has proved very important in defining the
Court s judicial strategy. The Court itself has often stressed that, given the better
position of the national authorities to regulate fundamental rights issues, it
should only exercise a subsidiary and supervisory role.56 It is this recognition of
the primary role of the national authorities and the subsidiary role of the Court
thtt underlies the Court's well-known margin of appreciation doctrine. This is
well expressed in one of the Court's early landmark cases, Handyside v. United
54 The doctrine and its effect have been analysed and discussed extensively; for a few of the most
important contributions, see T.A. O'DONNELL, 'The Margin of Appreciation Doctrine:
Standards in the Jurisprudence of the European Court of Human Rights', 4 Human Rights
Quarterly (1982) pp. 474-496; R.ST.J. MACDONALD, 'The Margin of Appreciation', in R.ST.J.
MACDONALD et al., cds., The European System for the Protection of Human Rights (Dordrecht/
Boston/London, Martinus Nijhoff 1993) pp. 83-124; E. BREMS, 'The Margin of Appreciation
Doctrine in the Case-Law of the European Court of Human Rights', Zeitschrift fur
ausldndisches Sffentliches Recht und Volkerrecht (1996) pp. 240-350; N. LAVENDER, 'The
Problem of the Margin of Appreciation', 4 European Human Rights Law Review (1997) p. 380;
J.G.C. SCHOKKENBROEK, 'The Basis, Nature and Application of the Margin-of-Appreciation
Doctrine in the Case-Law of the European Court of Human Rights', 19 Human Rights Law
Journal (1998) pp. 30-36; E. BENVENISTI, 'Margin of appreciation, consensus, and universal
standards', 31 New York University Journal of International Law and Politics (1999) p. 843;
M.R. HUTCHINSON, 'The Margin of Appreciation Doctrine in the European Court of Human
Rights, 48 International Comparative Law Quarterly (1999) p. 641; S. GREEK, The Margin of
Appreciation: interpretation and discretion under the European Convention on Human Rights,
Human Rights Files No. 17 (Strasbourg, Council of Europe Publishing 2000); Lord MACKAY
OF CLASHFERN, 'The margin of appreciation and the need for balance', in P. MAHONEY, ed.,
Protecting Human Rights: The European Perspective (Koln, Heymanns 2000) p. 837: ARAI-
TAKAHASHI, supra n. 23; OSTROVSKY, supra n. 23; SWEENEY, supra n. 25; G. LETSAS, 'Two
Concepts of the Margin of Appreciation', 26 Oxford Journal of Legal Studies (2006) pp. 705-
732; CHRISTOFFERSEN, supra n. 14; GERARDS, supra n. 23;). KRATOCHVI'L, 'The inflation of the
margin of appreciation by the European Court of Human Rights', 29 Netherlands Quarterly of
Human Rights (2011) pp. 324-357; D. SPIELMANN, 'Allowing the right margin. The European
Court of Human Rights and the national margin of appreciation doctrine: waiver or
subsidiarity of European review?', GELS Working Paper 2012, via <>.
55 See supra, section 2.3.
56 See supra, section 2.3.
Chapter 2. The European Court of Human Rights and the national courts
Kingdom, which concerned the conformity of a limitation of the freedom of
expression with Article 10(2) of the Convention:57
'The Court points out that the machinery of protection established by the Convention
is subsidiary to the national systems safeguarding human rights . .. The Convention
leaves to each Contracting State, in the first place, the task of securing the rights and
liberties it enshrines. .. .
By reason of their direct and continuous contact with the vital forces of their
countries, State authorities are in principle in a better position than the international
judge to give an opinion on the exact content of these requirements as well as on the
"necessity" of a "restriction" or "penalty" intended to meet them. ... [I]t is for the
national authorities to make the initial assessment of the reality of the pressing social
need implied by the notion of necessity" in this context.
Consequently, Article 10 para. 2 leaves to the Contracting States a margin of
appreciation. This margin is given both to the domestic legislator ("prescribed by
law")and to the bodies, judicial amongst others, that are called upon to interpret and
apply the laws in force'.58
Although the application of the doctrine is often blurred and unclear (and the
doctrine has been criticised for that reason), its theoretical importance for the
Convention system as a whole is undisputed.59 In practice, the doctrine functions
as a yardstick for the intensity of the Court's scrutiny of arguments advanced in
justification of an interference.60 The Court thereby uses a sliding scale model,
with only a relatively clear difference between the ends of leaving a wide margin
of appreciation' and leaving a narrow one.61 If a wide margin is permitted to the
national authorities, the Court usually only superficially and rather generally
examines the choices made by the national authorities to see whether the result is
(clearly) unreasonable or disproportionate, or places an excessive burden on the
applicant.62 By contrast, if a narrow margin is left, the Court generally closely
57 Handyside v. UK, ECtHR 7 December 1976, appl. no. 5493/72.
58 Idem, para. 48.
59 See in particular the sources mentioned in n. 54 supra.
w Although it is precisely here that there is some confusion on the effect of the doctrine. Some
scholars have rightly stated that the determination of the scope of the margin of appreciation
is sometimes presented as an outcome of substantive assessment of a justification, rather than
as a tool to determine the intensity of review in a preliminary stage; see in particular LETSAS,
supra n. 54.
61 On the problematic translation from margin of appreciation into standards of review, see in
extenso CHRISTOFFERSEN, supra n. 14, at p. 265 and LAVENDER, supra n. 54, at p. 387. For the
factors determining the scope of the margin of appreciation, see e.g. BREMS, supra n. 54,
ARAI-TAKAHASHI, supra n. 23 and GERARDS, supra n. 23.
62 A classic example of deferential review is the case of James and Others v. UK, ECtHR 21 February
1986, appl. no. 8793/79, in which the Court allowed the national authorities a wide margin of
appreciation in the context of property regulation. This wide margin corresponded to a lenient
test of necessity: the Court explained that c[i]t is not for the Court to say whether the legislation
represented the best solution for dealing with the problem or whether the legislative discretion
should have been exercised in another way (para. 51). For other examples, see Rasmussen v.
Janneke Gerards
considers the facts of the case. It then carefully determines the interests at stake
and decides for itself where the balance between the conflicting interests should
have been struck. The national authorities then bear the burden of showing that
the limitation of rights was based on careful and objective assessment of facts and
interests and, more generally, that it was reasonable.63 Furthermore, in many of
these cases the Court applies a strict test of necessity or subsidiarity, often
mentioning the availability of less intrusive measures to underpin its judgment
that the interference cannot be held to be justified, or criticising the lack of
possibilities for individualised judgments on the national level.64
For the states, therefore, the margin of appreciation doctrine literally
determines the margins within which they can freely take decisions. For the
Court, the doctrine determines the strictness of its review and thus the intensity
with which it scrutinises national legislation and decisions. For that reason,
some governments, such as those of the Netherlands and the United Kingdom,
have advocated that the Court should leave a wider margin of appreciation to the
states.65 By doing so, in their view, the Court would be more respectful of
national sovereignty and the fact that national authorities are best placed to
apply the Convention in the national context. Nevertheless, scholars have argued
that^it is primarily the flexibility of the doctrine that gives it its force and
impact.66 By narrowing the margin of appreciation in cases where core
fundamental rights are at stake or where the interference is particularly serious,
the Court can exercise effective supervision and control over national acts and
Denmark, ECtHR 28 November 1984, appl. no. 8777/79, para. 41; Frette v. France, ECtHR
26 February 2002, appl. no. 36515/97, para. 42; P;a and Puncernau v. Andorra, ECtHR 13 July
2004, appl. no. 69498/01, para. 46; Anheuser-Busch Inc. v. Portugal, ECtHR (GC) 11 January
2007, appl. no. 73049/01, para. 83; Bulgakov v. Ukraine, ECtHR 11 September 2007, appl. no.
59894/00; Kearns v. France, ECtHR 10 January 2008, app. no. 35991/04, paras. 80-84; A. and
Others v. UK, ECtHR (GC) 19 February 2009, appl. no. 3455/05, para. 176; A., B. and C. v.
Ireland, ECtHR (GC) 16 December 2010, appl. no. 25579/05, paras. 233 et seq. On this, see also
J.H. GERARDS, Judicial Review in Equal Treatment Cases (Leiden, Martinus Nijhoff2005) p. 155;
P. MAHONEY, 'Judicial activism and judicial self-restraint in the European Court of Human
Rights: two sides of the same coin, 11 Human Rights Law Journal (1990) p. 57 at pp. 78 and 87.
63 See e.g. Connors v. UK, ECtHR 27 May 2004, appl. no. 66746/01, para." 94. See also
Makhmudov v. Russia, ECtHR 26 July 2007, appl. no. 35082/04.
See e.g. Informationsverein Lentia v. Austria, ECtHR 24 November 1993, appl. no. 13914/88,
paras. 39 and 42; Puentes Bobo v. Spain, ECtHR 29 February 2000, appl. no. 39293/98,
para. 49: S. and Marperv. UK, ECtHR 4 December 2008, appl. nos. 30562/04 and 30566/04,
paras. 119-120.
65 This was expressed by the Dutch government, for example, in a letter to the Dutch Parliament
in which it explained its ideas on the future of the ECtHR; see (in Dutch) Kamerstukken II
2011/12, 32735, no. 32. The Senate responded to this by adopting a resolution, almost
unanimously, in which it asked the government to abandon the issue of advocating a greater
margin of appreciation for the states (KameretufcAen/2011/12, 32735, no. C). For the UK, see
in particular the leaked version of the British draft declaration for the intergovernmental
conference in Brighton in April 2012: <
echr-reform-uk-draft>, paras. 15-19.
66 See the various contributions cited supra n. 54.
Chapter 2. The European Court of Human Rights and the national courts
decisions.67 Only if it remains the Court's prerogative to determine the scope of
the margin of appreciation, and only if the Court does do so consistently and
diligently, can the doctrine play its crucial role in negotiating between the need
to respect national sovereignty and national diversity, and the need to protect
fundamental rights at a reasonable level.68
3.4.2. Influence of the margin of appreciation doctrine for national decision
Although the margin of appreciation doctrine is considered fundamental to the
system of Convention supervision as a whole, the question is sometimes raised
as to what extent the doctrine may (or must) influence national judicial decision
making. This influence proves to be very limited indeed. The margin of
appreciation doctrine is an instrument of the Court to determine its relationship
with the states. Given the Court's reliance on the international law notion of
state responsibility, the doctrine is not to have any impact on the internal
division of competences or the separation of powers.69 The margin is accorded to
the states as a whole, regardless of their internal structure or division of
competences.70 This means that the doctrine as such is also applicable to the
national courts, meaning that they, just as much as the national legislature or
national administrative bodies, have a certain amount of discretion to offer
judgment in accordance with national law. In the case of A. and Others v. United
Kingdom, the Court clarified that 'the domestic courts are part of the "national
authorities" to which the Court affords a wide margin of appreciation'.71
Thus, if a wide margin of appreciation is accorded to the states, the national
courts have more leeway to assess the reasonableness and proportionality of
interferences, with fundamental rights than if a narrow margin is left. There,
67 See in particular MACDONALD, supra n. 54, at p.123; ARAI-TAKAHASHI, supra n. 23, at p.236;
OSTROVSKY, supra n. 23, at p. 58, GERARDS, supra n. 23, at p.105.
68 On this special value of the doctrine, see more elaborately also GLENN, supra n. 26, ch. 10.
69 See also supra, section 3.3.
70 Mostly the Court only mentions that 'Contracting States must have a broad margin of
appreciation (e.g. MGN Limited v. UK, ECtHR 18 January 2011, appl. no. 39401/04, para. 142,
emphasis added). Sometimes the Court makes clear which State body should be accorded a
margin of appreciation, which makes clear that, in practice, the margin is accorded to all
State organs, including the courts; see e.g. Pye v. UK, ECtHR (GC) 30 August 2007, appl. no.
44302/02, para. 71 (margin of appreciation is accorded to the legislature); Buckley v. UK,
ECtHR 25 September 1996, appl. no. 20348/92, para. 75 (the local bodies taking a planning
decision); MGN Limited v. UK, ECtHR 18 January 2011, appl. no. 39401/04, para. 150 (the
national court); Van Hannover (No. 2) v. Germany, ECtHR (GC) 7 February 2012, appl. nos.
40660/08 and 60641/08, par. 105 (the national court and the national legislature jointly). On
this, see more elaborately (in Dutch) N. JAK and }. VERMONT, 'De Nederiandse rechter en de
margin of appreciation. De rolvan de margin of appreciation in de interne horizontale relatie
tussen de rechter, de wetgever en het bestuur' [The Dutch courts and the margin of
appreciation. The role of the margin of appreciation in the internal horizontal relationship
between the judiciary, the legislature, and the executive], 32 NJCM-Bulletin (2007)p.125.
71 A. and Otfiera v. UK, ECtHR (GC) 19 February 2009, appl. no. 3455/05, para. 176.
Janneke Gerards
however, the relevance of the doctrine to national law ends. Importantly, the
doctrine says nothing about the way national courts should behave towards
other branches of government. In other words, if there is a wide margin of
appreciation under the Convention, this does not imply that the national court
must show judicial restraint towards the legislature or the administrative
bodies.72 The Court's Grand Chamber stressed this in A. and Others v. United
Kingdom, where it said that '[t]he doctrine of the margin of appreciation has
always been meant as a tool to define relations between the domestic authorities
and the Court. It cannot have the same application to the relations between the
organs of State at the domestic level.'73
Whereas the national courts are held to implement the Court s interpretations
and, to some extent, copy its interpretative approach, as has been explained in
section 3.3, this does not imply that they are at all required to duplicate the
Court's application of the margin of appreciation doctrine. On the contrary:
given the primary responsibility of the state for the protection of the Convention
rights, it may be important for the national court to carefully assess the
reasonableness of interferences with Convention rights by the legislature or
administrative organs.74 Of course, there may be good reason for the national
counts to defer to the legislature or the executive by exercising restraint' in
fundamental rights cases. In such cases, however, the intensity of the national
courts' review is not determined by the margin of appreciation case-law of the
Court, but by national standards for deference, even if these standards may seem
similar to those applied by the Court to determine the scope of the national
margin of appreciation. If national courts were to automatically translate a wide
margin of appreciation to deferential judicial review, this would be a
misinterpretation of the doctrine. Indeed, the notion of shared responsibility,
discussed below, can only be effective if the national courts adequately exercise
their supervisory and corrective tasks and do not hide behind a doctrine that is
not applicable at the domestic level.
It is clear from the discussion above that the national courts have a very
important role to play in guaranteeing the primary protection of the Convention.
72 See also JAK and VERMONT, supra n. 70, at p. 133; SPIELMANN, supra n. 54 at pp. 24-26; VAN
DE HEYNING, supra n. 33, p.203.
73 A. and Others v. UK, ECtHR (GC) 19 February 2009, appl. no. 3455/05, para. 184; see also
SPIELMANN, supra n. 54 at p. 24.
74 See also JAK and VERMONT, supra a. 70, at pp.132-133.
Chapter 2. The European Court of Human Rights and the national courts
The state can be held accountable before the Court if national courts have not
met their duty to guarantee the compliance of national law with the Convention,
either from because of an oversight or because of a lack of competence. The
important role of the national courts is also apparent from the Convention text.
Article 35 stipulates that the Court can only review applications on their merits
if all national remedies have been exhausted.75 The Court has made clear that
this provision aims to offer a possibility for reparation and correction of flawed
legislation or administrative acts, which the states should fully use to comply
with their primary obligation under Article 1 of the Convention to guarantee the
Convention rights.76 Only if national judicial proceedings have not offered
redress may the Court take a second look at the case. This division of
competences between the national courts and the ECtHR evidently places a
rather heavy responsibility on the national courts. They have to make sure that
the Court's case-law is implemented and respected in their own judgments and
decisions and they have to make full use of their competences to secure
compliance with the Convention.
However, it must be remarked that there is another side to this coin. It is
likely that national courts will not always be willing or able to meet these
obligations, for example if they disagree with the Court's findings, or if they lack
the competence to comply. If that situation arises, it is obvious that the Court
finds itself in a rather weak position, as it lacks strong powers to force the states
into compliance - finding a violation against the state may often not be enough
to bring about structural change.77 Here, the tension between the push and pull
factors discussed in section 2.4 is at its strongest. In fact, thus, the Court depends
on constructive collaboration with the national courts and on the persuasiveness
5 On this, see also TULKENS, supra n. 13, at p. 6.
76 See in particular, and very explicitly, the Grand Chamber's judgment in Demopoulos and
Others v. Turkey, ECtHR (GC) 1 March 2010, appl. nos. 46113/11 and others: '69. It is
primordial that the machinery of protection established by the Convention is subsidiary to the
national systems safeguarding human rights. This Court is concerned with the supervision of
the implementation by Contracting States of their obligations under the Convention. It
cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure
that the fundamental rights and freedoms enshrined therein are respected and protected on a
domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part
of the functioning of this system of protection. States are dispensed from answering before an
international body for their acts before they have had an opportunity to put matters right
through their own legal system and those who wish to invoke the supervisory jurisdiction of
the Court as concerns complaints against a State are thus obliged to use first the remedies
provided by the national legal system ... The Court cannot emphasise enough that it is not a
court of first instance; it does not have the capacity, nor is it appropriate to its function as an
international court, to adjudicate on large numbers of cases which require the finding of basic
facts or the calculation of monetary compensation - both of which should, as a matter of
principle and effective practice, be the domain of domestic jurisdictions/
77 Cf. KELLER and STONE SWEET, supra n. 4, at p. 14.
Janneke Gerards
and quality of its interpretations: it has to persuade and cajole national courts
into compliance, rather than force them.78
It is to be understood in this light that the Court has expressly accepted
that there must be a kind of 'shared responsibility' for guaranteeing the rights
of the Convention, and it has stressed the importance of active involvement of
national courts in the Convention system.79 The Court wants to ensure that
the national courts become its allies in a common project of protecting
fundamental rights. Thus, the notion of'shared responsibility' or partnership'
can be seen as an expression of the Court's desire to deal with the tension
between its push and pull factors in an adequate manner, i.e. protecting
fundamental rights effectively while respecting national legal traditions and
national diversity.
The notion of shared responsibility offers a useful lens to look at the
interaction between the Court and the states from the purposes of this study -
the more the Court's work contributes to shared responsibility, the more
important the role of the national courts will be. For that reason, the
subsequent sections will further discuss the Court's interpretative techniques
and the principles developed in its case-law from the perspective of shared
A.M. SLAUGHTER, 'A Typology of Transjudicial Communication', 29 University of
Richmond Law Review (1994) pp. 99-137 at p. 124-125; H. KELLER and A. STONE SWEET,
'Assessing the Impact of the ECHR on National Legal Systems', in KELLER and STONE
SWEET, supra n. 4, pp. 677-712 at p. 707; G. LUBBE-WOLF, 'How can the European Court of
Human Rights Reinforce the Role of National Courts in the Convention System?', in How
can we ensure greater involvement of national courts in the Convention system? Dialogue
between judges (European Court of Human Rights, Council of Europe 2012) pp. 11-16 at
p. 11. See also J.H, GERARDS, 'Argumentatie in een pluralistisch rechtssysteem - de
uitdaging voor de Europese hoven" [Argumentation in a pluralist legal system - the
challenge for the European courts], in E. FETERIS et a-1., eds., Gewogen oordelen. Essays
over argumentatie en recht [Balanced judgment. Essays about argumentation and law]
(Amsterdam, Boom 2012) pp. 21-40 at p. 24-25; GERARDS, supra n. 34.
The Court expressly mentioned the need for 'shared responsibility' in its Preliminary
Opinion in preparation of the Brighton Conference, adopted by the Plenary Court on
20 February 2012, para. 4. See also N. BRATZA, 'The relationship between the UK courts
and Strasbourg', 5 European Human Rights Law Review (2011) pp. 505-512 at p. 511; N.
BRATZA, Solemn hearing of the European Court of Human Rights on the occasion of the
opening of the judicial year, in How can we ensure greater involvement of national courts in
the Convention system?. Dialogue between judges (European Court of Human Rights,
Council of Europe 2012) pp. 24-29 at p. 26-27; TULKENS, supra n. 13, at p. 8. See further
LETSAS, supra n. 25, at p. 83. This also has practical advantages, as stressed by HELPER and
ARAI-TAKAHASHI - if domestic judges and authorities act as 'first-line defenders' of
Convention rights, this will enhance judicial expediency and efficiency on the level of the
ECtHR. Having regard to its limited resources, such a division of labour is of great value to
the ECtHR; see HELPER, supra n. 1,at pp.128 and 135 and ARAI-TAKAHASHI, supra n. 23.
Chapter 2. The European Court of Human Rights and the national courts
The acceptance and application of general interpretative principles such as
evolutive, practical and eflFective interpretation, and autonomous interpretation
have led the Court to give a rather generous reading of many Convention rights,
in particular Articles 3 (prohibition of torture), 8 (privacy and family life) and 1
First Protocol (property). It is because of its use of these principles that the Court
is so often accused of activism and overreaching. At the same time, the Court
can also use these methods to emphasise the importance of shared responsibility.
In practice, the Court's methods and principles of interpretation can play an
important role in shaping the interrelationship between the Court and the
national courts, in particular in determining the leeway left to the national
courts to give their own interpretation to the Convention.
This section aims to highlight the use the Court makes of these principles
and methods of interpretation to enhance collaboration between national
courts and the Court. After a general description of the meaning of the various
principles and methods, the Court's strategic use of them is highlighted, as
well as the effects of the use of these principles for the interrelationship between
the Court and the domestic level.80 Particular attention is thereby paid to
the criticism that is directed at the Court's approach, as well as to the Court's
response to tUis.
Before exploring these issues, it is important to stress that the Court uses
many methods of interpretation that are not discussed in this section. In
accordance with the general rules of interpretation mentioned in the Vienna
Convention on the Law of Treaties, the Court often relies on classical methods
of textual and systematic interpretation, or interpretation based on the travaux
preparatoires of the Convention.81 These methods are not specifically
interesting to this chapter, however, as it is mainly concerned with the special
way the Court gives shape to the Convention and the way it interacts with
national authorities in this respect. For that reason they will not be addressed
further here.
80 See also N. KRISCH, 'The Open Architecture of European Human Rights Law', 71 Modern
Law Review (2008) pp. 183-216 at p.206.
81 See in more detail, in Dutch, J.H. GERARDS, EVRM - algemene beginselen [ECHR General
Principles] (The Hague, Sdu 2011) ch. 1.
Janneke Gerards
4.2.1. Evolutive and consensus interpretation
The understanding of fundamental rights is continually changing as a result of
societal and technological developments and changes in views on fundamental
rights.82 While it was long accepted, for example, that the notion of 'inhuman
and degrading' treatment only related to extreme situations of ill treatment, the
Court has now recognised that caning in schools also comes within the
prohibition of degrading treatment in Article 3 ECHR.83 In so doing, the Court
mentioned expressly that 'the Court cannot but be influenced by the
developments and commonly accepted standards in the penal policy of the
Member States of the Council of Europe in this field.'84 Likewise, it has gradually
come to accept that the death penalty cannot be reconciled with the underlying
values of the Convention,85 and that conscientious objections to compulsory
military service must be recognised.86 Thus, changes in societal and legal views
on a certain topic are reflected in the Court's interpretations. The rationale for
adopting such an evolutive approach is obvious: if the Court were not to take
developments in opinions and views into account, the Convention would quickly
fall out of step with national fundamental rights law and policy, and the Court
would have great difficulty in fulfilling its function to provide a pan-European
minimum level of protection of fundamental rights.
Evolutive interpretation also means that the interpretation of the Convention
must be adapted to technological, factual and legal developments. The right to
respect for an individual's privacy is now held to cover not only classic searches
in ones home and telephone tapping, but also, for example, the placement of
GPS instruments in one's car.87 Similarly, the right to physical integrity,
protected by Article 8, nowadays also covers DNA samples.88 And in the same
vein, the Court has accepted that the availability of the internet has led to new
fundamental rights issues that are covered by the right to privacy (e.g. the long-
term availability of personal data and difficulties related to not being able to fully
remove personal information from the internet or databases),89 and freedom of
). MAHONEY, The Challenge of Human Rights. Origin, Development and Significance (Maiden,
Blackwell 2007) p. 97. For a good analysis of the evolution of the Convention, see also
E. BATES, The Evolution of the European Convention on Human Rights - From its Inception to
the Creation of a Permanent Court of Human Rights (Oxford, Oxford University Press 2010)
in particular ch. 9.
Tyrerv. UK, ECtHR25 April 1978, appl. no. 5856/72.
Idem, para. 31.
Al-Saadoon and Mufdhi v. UK, ECtHR 2 March 2010, appl. no.61498/08, para. 120.
Bayatyan v. Armenia, ECtHR 27 October 2009, appl. no. 23459/03.
Uzun v. Germany, ECtHR 2 September 2010, appl. no. 35632/05.
S. and Marper v. UK, ECtHR (GC) 4 December 2008, appl. nos. 30562/04 and 30566/04.
See e.g. Khelili v. Switzerland, ECtHR 18 October 2011, appl. no.16188/07.
Chapter 2. The European Court of Human Rights and the national courts
expression (e.g. the possibility of placing information on the internet).90 Such
evolutive interpretations are almost unavoidable, given the Courts task to
provide an adequate minimum level of protection.
To adapt its interpretations to present-day societal and legal views and
opinions, the Court uses a special interpretative method, namely 'common
ground' or 'consensus' interpretation.91 The method implies that the Court will
usually accept a novel (mostly wider) interpretation of the Convention if there is
a sufficiently clear European consensus on the classification of a certain aspect of
a right as part of a Convention right.92 Using this approach, for example, the
Court has come to accept that Article 8 of the Convention (protecting the right
to respect for one's private life) covers assisted suicide93 and abortion,94 a right to
procreation95 and a right to legal recognition of gender transformation.96 To
discover if there is a sufficient consensus (or rather: convergence of legal views in
Europe) to support a novel Convention interpretation, the Court looks at
comparative studies (either produced by one of the intervening parties or,
especially in Grand Chamber cases, by the Court's registry),97 at international
treaties98 and'reports of international organisations," and at EU law.100' 101
Clearly, this reliance on changes, developments and trends in national and
international law leads to a dynamic and evolutive reading of the Convention.
4.2.2. Practical and effective rights and meta-teleological interpretation
The Court does not restrict the basis for its interpretation to evolutive
interpretation and the need to attune its interpretation to the views and opinions
expressed in the various European states. It also frequently stresses that the
90 See e.g. Mouvement Raelien Suisse v. Switzerland, ECtHR (GC) 13 July 2012, appl. nos.
16354/06 arid 16354/06.
91 On this method, see in extenso (and with many references) H.C.K. SENDEN, Interpretation of
Fundamental Rights in a Muitilevel Legal System. An analysis of the European Court of Human
Rights and the Court of Justice of the European Union (Antwerp, Intersentia 2011).
92 Cf. Christine Goodwin v. UK, ECtHR (GC) 11 July 2002, appl. no. 28957/95, para. 74: 'the
Court must have regard to the changing conditions within the respondent State and within
Contracting States generally and respond, for example, to any evolving convergence as to the
standards to be achieved'.
93 Haas v. Switzerland, ECtHR 20 January 2011, appl. no. 31322/07.
'"' A., B. and C. v. Ireland. ECtHR (GC) 16 December 2010, appl. no. 25579/05.
95 S.H. and Others v. Austria, ECtHR (GC) 3 November 2011, appl. no. 57813/00.
96 Christine Goodwin v. UK. ECtHR (GC) II July 2002, appl, no. 28957/95.
97 See recently e.g. Costa and Pavan v. Italy, ECtHR 28 August 2012, appl. no. 54270/10; see
dassically also Christine Goodwin v. UK, ECtHR (GC) 11 July 2002, appl. no. 28957/95.
98 e.g. Mamatkulov and Askarov v. Turkey, ECtHR (GC) 4 February 2005, appl. nos. 46827/99
and 46951/99; Demir and Baykara v. Turkey. ECtHR (GC) 12 November 2008, appl. no.
w e.g. Opuz v. TMrfce^, ECtHR 9 June 2009, appl. no. 33401/02.
lw e.g. Micallef v. Malta, ECtHR (GC) 15 October 2009, appl. no. 17056/06; Neulinger and
Shuruk v. Switzerland, ECtHR (GC) 6 July 2010, appl. no. 41615/07.
101 See more extensively e.g. SENDEN, supra n. 91.
Janneke Gerards
central aim and purpose of the Convention is to guarantee fundamental rights
to individuals in a practical and effective manner.102 It thereby frequently refers
to the general objectives and fundamental principles underlying the Convention
as a whole, such as notions of respect for human dignity, personal autonomy,
democracy, the rule of law, and pluralism.103 The protection of those values is
central to the Convention system as a whole, as is clear from its Preamble and
from the Statute of the Council of Europe. Not surprisingly, therefore, the
ECtHR strives to give a reading to the Convention rights that fits the underlying
values of the Convention. The interpretative technique used in this regard has
been termed 'meta-teleological interpretation'.104 In applying this technique, the
Court does not so much refer to the concrete aim of certain provisions of the
Convention (as would be the case with 'teleological' interpretation), but rather to
the wider, general purpose and objective of the Convention.105 The use ofmeta-
teleological interpretation fits well with the general requirements for treaty
interpretation that have been defined in Article 31 of the Vienna Convention on
the Law of Treaties, which stipulates that 'a treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose'.106 The meta-
telec^ogical interpretation gives shape to the notion of 'object and purpose', as
the Court explicitly mentioned in Soeringv. United Kingdom:
87. In interpreting the Convention regard must be had to its special character as a
treaty for the collective enforcement of human rights and fundamental freedoms
Thus, the object and purpose of the Convention as an instrument for the protection
of individual human beings require that its provisions be interpreted and applied so
as to make its safeguards practical and effective ... In addition, any interpretation of
the rights and freedoms guaranteed has to be consistent with "the general spirit of
the Convention, an instrument designed to maintain and promote the ideals and
values of a democratic society"'.107
102 See already Airey v. Ireland, ECtHR 9 October 1979, appl. no. 6289/73, para. 24 and, more
recently, Mamatkulov and Askarov v. Turkey, ECtHR (GC) 4 February 2005, appl. nos.
46827/99 and 46951/99. See more extensively SENDEN, supra n. 91, at p.73.
103 Cf. 0. DE SCHUTTER and F. TULKENS, "Rights in Conflict: the European Court of Human
Rights as a Pragmatic Institution', in E. BREMS, ed.. Conflicts between Fundamental Rights
(Antwerp/Oxford/Portland, Intersentia 2008) pp. 169 at p. 214; F. OST, 'The Original Canons
of Interpretation of the European Court of Human Rights', in M. DELMAS-MARTY and
C. CHODKIEWICZ, eds., The European Convention for the Protection of Human Rights
(Martinus NijhofF, Dordrecht 1992), pp. 283-318 at p. 295; SENDEN, supra n. 91, at p. 199.For
examples, see Pretty v. UK, ECtHR (GC) 29 April 2002, appl. no. 2346/02, para. 64 (reference
to human dignity); fehovah's Witnesses of Moscow v. Russia, ECtHR 10 June 2010, appl. no.
302/02 (reference to personal autonomy); United Communist Party of Turkey v. Turkey,
ECtHR (GC) 30 January 1998, appl. no. 19392/92, para. 45 (reference to democracy).
104 M. LASSER, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and
Legitiniacy (Oxford, Oxford University Press 2004).
105 Cf. SENDEN, supra n. 91,at p.204.
w6 See further on this, with references, SENDEN, supra n. 91, at p.93.
'°7 ECtHR 7 July 1989, appl. no. 14038/88.
Chapter 2. The European Court of Human Rights and the national court;
This consideration demonstrates that meta-teleological interpretation, consensus
interpretation and evolutive interpretation are closely intertwined. In fact, they
arc different aspects of the same overall desire to do justice to the essential object
of the Convention, i.e. to effectively protect individual fundamental rights and to
guarantee a reasonable minimum level of protection of fundamental rights
throughout the Council of Europe.
4.2.3. Autonomous interpretation
The Convention contains many notions and concepts that are also used in
national constitutions and legislation, such as privacy', property', 'court' or
marriage'. The precise legal meaning of such notions can differ in each
individual legal system.108 For example, what constitutes property' in Denmark
can be different from what constitutes property in Greece, and while disciplinary
proceedings may be conducted before a court in one state, they may not form
part of the regular judicial system in another.109 When interpreting or defining
central Convention notions, the Court must choose between respecting the
national meaning of such a notion, and adopting a European definition The
court has stressed that a European, autonomous definition should usually
prevail.110 This is understandable from the perspective that the Convention
should guarantee an equal level of protection for all States Parties.1"
In providing an autonomous interpretation of the Convention, the Court
uses different methods of interpretation, varying from textual interpretation to
consensus interpretation. In the latter situation, the Court searches for the
largest common denominator with respect to the notion that has to be defined
and bases its own Convention definition on the interpretation thus found. Meta-
teleological interpretation may also help in arriving at an autonomous reading:
the Court will usually try to give an autonomous definition that fits well with the
general principles and notions underlying the Convention. Indeed, the Court
has expressly stated that the integrity of the objectives of the Convention would
be endangered if the Court were to take the national level of protection, or the
national definition of certain notions, as a point of departure for its own case-
Cf. R. BERNHARDT, 'Thoughts on the interpretation of human rights treaties', in R.ST.J.
MACDONALD etal., eds., 'Ihe European System for the Protection of Human Rights (Dordrecht,
Martinus Nijhoff 1993) pp. 65-71 at p. 67.
See further BERNHARDT, supra n. 108, at p. 67.
Cf. F. SUDRE, 'Le recours aux "notions autonomes'", in F. SUDRE, ed., L'interpretation de la
Convention europeenne des droits de I'homme (Brussels, Bruylant 1998) p. 93 at p. 117; see also
elaborately SENDEN, supra a. 91, at p.177.
F. MATSCHER, 'Methods of Interpretation of the Convention', in R.ST.J. MACDONALD et al.
cds. The European System for the Protection of Human Rights (Martinus NijhoflF, Dordrecht
1993) p. 63 at p. 73; SUDRE, supra n. 110, at p. 94; SENDEN, su^ra n. 91, at p. 178 and, more
elaborately, pp. 294-295.
Janneke Gerards
law.112 In particular, there would then be a risk that states would try to evade
supervision by the Court by giving a narrow definition to terms and notions that
determine the Convention's applicability.113
The previous section has shown that the Court's development of interpretative
principles and methods is mainly based on principled considerations regarding
the role and function of the Convention. Besides this, the Court may have more
strategic reasons to use such methods of interpretation. Consensus interpretation
and autonomous interpretation, for example, allow the Court to demonstrate its
willingness to take national law as guidance when interpreting important
notions of the Convention, and thus to demonstrate its respect for what is
accepted and acceptable at the national level.114 Consensus interpretation may
also enable the Court to arrive at (autonomous) definitions and interpretations
that can be relatively easily implemented in national law, since definitions may
be dhosen that lie close to what is already known and accepted at the national
level.115 Furthermore, and perhaps more importantly, the ECtHR has
traditionally been able to use consensus interpretation to respond to national
concerns regarding the expansive protection of fundamental rights. In
particular, as is further discussed below (section 4.5.2), it can refuse to give a
new interpretation to the Convention due to the absence of sufficient support in
the law of the Member States. In a few judgments it has even refused to give an
112 See e.g. Engel and Others v. the Netherlands, ECtHR 8 June 1976, appl. nos. 5100/71, 5101/71,
5102/71, 5354/72, 5370/72, para. 81; Chassagnou v. France, ECtHR (GC) 29 April 1999, appl.
no. 25088/94, para. 100. See also G. LETSAS, 'The Truth in Autonomous Concepts: How to
Interpret the ECHR', 15 European Journal of International Law (2004) pp. 279-305 at pp. 282-
283 and SENDEN, supra n. 91,at p. 298.
113 Cf. OST, supra n. 103, at p. 306; LETSAS, supra n. 112, at pp. 282-283; LETSAS, supra n. 25, at
p. 42; SENDEN, supra n. 91, at p. 178. See also the dissenting opinion of Judge Martens in the
case ofFischerv. Austria, ECtHR 26 April 1995, appl. no. 16922/90, para. 9.
114 Cf. P.G. CAROZZA, 'Propter Honoris Respectum: uses and misuses of comparative law in
international human rights: some reflections on the jurisprudence of the European Court of
Human Rights', 73 Notre Dame Law Review (1998) p. 1217 at pp. 1226-1228; A.R. MOWBRAY,
'The Creativity of the European Court of Human Rights', 5 Human Rights Law Review 57
115 For the EU, where a similar approach is used, see K. LENAERTS, 'Interlocking Legal Orders in
the European Union and Comparative Law', 52 International and Comparative Law Quarterly
(2003) p. 873 at pp. 880-881. It is important to note, however, that this advantage will be a
relative one - whether a definition will really fit in well with national law will depend on the
level and the nature of the consensus and on the extent to which the meaning of a notion in
the law of a specific Member State already resembles the ECtHR definition. See also M.
CARTABIA, 'Europe and Rights: Taking Dialogue Seriously', 5 European Constitutional Law
Review (2009) pp. 5-31 at p. 18.
Chapter 2. The European Court of Human Rights and the national courts
autonomous reading altogether, leaving the definition of rights issues to be
decided by the states. In such cases, the need to respect diversity and national
legal traditions trumps the desire to provide a high level of protection. Using the
method in this manner the Court may try to ward off accusations ofactivism116
and it may display its willingness to do justice to the call for respect for national
diversity in regard to sensitive fundamental rights issues.117 Moreover, it can
thereby respect the principle of subsidiarity and make the national authorities
responsible for compliance with the Convention. Thus, such methods of
interpretation are for the Court an important instrument to negotiate between
the pull' and 'push' factors discussed in section 2 and to give expression to the
notion of'shared responsibility' for compliance with the Convention.
The same is true ofmeta-teleological interpretation. The Convention's general
principles and objectives are very similar to principles that are mentioned in
many national constitutional preambles or that find expression in national
constitutional texts. By referring to such principles, the Court refers to a logical
point of connection between the Convention and national constitutions, making
it very clear that the Court respects such principles, rather than interferes with
them.118 Secondly, there is strong rhetorical force in the use of this method. If
the Court closely connects any novel interpretation of Convention rights to the
central values of the Convention, national authorities are almost obliged to agree
with the reasonableness of such an interpretation. After all, since the national
authorities have willingly and knowingly accepted the central aims and
objectives by signing and ratifying the Convention, they logically also have to
accept obligations and rights directly flowing from its central aims.119
4.4.1. Meta-teleological interpretation and the risk of overreaching
Although there is great substantive and strategic value to the various principles
and methods discussed above, the Court is frequently criticised for its use of
these methods and the effects thereof. Indeed, there are some inherent risks for
116 See e.g. LENAERTS, supra n. 115,at p.879.
117 Cf. CARTABIA supra n. 115, at p. 20; see also WEILER, supra n. 6, at 102.
118 Cf. M. KUMM, "The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in
Europe before and after the Constitutional Treaty', 11 European Law Journal (2005) pp. 262-
307 at 290-291.
119 On this, much has been written in relation to a similar approach employed by the Court of
Justice of the EU; see e.g. U. EVERLING, 'Richterliche Rechtsfortbildung in der Europaischen
Gemeinschaft', 55 JuristenZeitung (2000) pp. 217-227 at p. 223 and (though less explicit)
E. PAUNIO and S. LINDROOS-HOVINHEIMO, "Taking Language Seriously: An Analysis of
Linguistic Reasoning and Its Implications in EU Law', 16 European Law Journal (2010) pp.
395-416 at p. 412.
Janneke Gerards
the Court in using precisely these methods. The pull towards practical and
effective, evolutive protection of rights appears to be so great as to easily cause
the Court to 'overreach'.120 Referring to the aims and objectives of the
Convention and the need for effective protection, for example, the ECtHR has
imposed numerous positive obligations on the states to invest in the effective
protection of fundamental rights, besides the classic negative obligations to
refrain from interfering with these rights.121 Although many of these obligations
are very valuable and even essential in terms of respect for human dignity and
democracy, such positive obligations have effected a great expansion of the
Convention's scope. In this respect, the criticism has sometimes been raised that
evolutive interpretation, however much supported by the Convention s aims and
underlying principles, has made it very difficult for the states to foresee the
obligations resulting from the Convention.122 Moreover, meta-teleological and
evolutive interpretation have led to accusations of activism and intrusion upon
national sovereignty and national policy choices.123
Some of the more controversial of the Court's recent judgments evidently
result from the Court's reference to the underlying principles of the Convention.
Its acceptance of the overriding importance of the value of state neutrality in the
caae of Lautsi v. Italy - which concerned the obligation to have crucifixes in
120 See further SENDEN, supra n. 91, at p. 76. See also M. BURSTEIN, 'The Will to Enforce: An
Examination of the Political Constraints Upon a Regional Court of Human Rights, 24
Berkeley Journal of International Law (2006) pp. 423-443 at p. 431; L.R. HELPER and A.-M.
SLAUGHTER, Toward a Theory of Effective Supranational Adjudication, 107 Yale Law Review
(1997) p. 273 at p. 315; and, in relation to the EU, where similar problems exist, P. CRAIG, 'The
ECJ and ultra vires action: a conceptual analysis', 48 Common Market Law Review (2011) pp.
395-437 at p.397.
121 Originally, the Court found the basis for the positive obligations doctrine in Article 1 of the
Convention in combination with the notion of effective protection; see e.g. Marckx v. Belgium,
ECtHR 13 June 1979, appl. no. 6833/74, para. 31 and more recently and more explicitly:
Kontrovd v. Slovakia, ECtHR 31 May 2007, appl. no. 7510/04, para. 51. For a review of the kind
of positive obligations accepted by the Court, see e.g. A.R. MOWBRAY, The Development of
Positive Obligations under the European Convention on Human Rights by the European Court
on Human Rights (Oxford, Hart 2004). For a more recent review as well as critical insight into
the problems related to the doctrine (which are also concerned with overreaching), see
D. XENOS, The Positive Obligations of the State under the European Convention of Human
Rights (London, Routledge 2012).
122 This is true, in particular, of the cases in which the Court has decided that a state is
responsible under the Convention for acts that have occurred before the Convention came
into force in a respondent state. See in particular Silih v. Slovenia, ECtHR (GC) 9 April 2009,
71463/01 and, more recently, Janowiec and Others v. Russia, ECtHR 16 April 2012, appl. nos.
55508/07 and 29520/09. See critically on this Baroness Hale of Richmond, in What are the
limits to the evolutive interpretation of the Convention?, Dialogue between judges (European
Court of Human Rights, Council of Europe 2011) pp. 11-18 at pp. 14-15.
123 For this type of criticism, see in particular M. BOSSUYT, 'Should the Strasbourg Court exercise
more self-restraint? On the extension of the jurisdiction of the European Court of Human
Rights to social security regulations', 28 Human Rights Law Journal (2007) pp. 321-332 and
M. BOSSUYT, 'Judges on Thin Ice: The European Court of Human Rights and the Treatment of
Asylum Seekers', Inter-American and European Human Rights Journal (2010) p. 47.
Chapter 2. The European Court of Human Rights and the national courts
classrooms of public primary schools - caused an outrage in many European
States.124 Surprisingly to some, perhaps including the Court, the comment was
made that state neutrality should not imply interference with national culture
and traditions.125 Indeed, the Grand Chamber thought it wise in this case to
stress the margin of appreciation of the states and to correct the Chamber's
strongly meta-teleological interpretation of the Convention.126 Likewise, the fact
that the Court relied on the absolute value of the prohibition of torture in the
case of Othman (Abu Qatada) v. United Kingdom, basing itself on the underlying
values of the Convention system, did not convince those who would like to see
terrorist convicts expelled or extradited to states where they risk torture or a trial
in which there is a great likelihood that evidence will be used that has been
obtained by torture.127 Similarly, referring to the importance of the right to vote
to guarantee a democratic state governed by the rule of law did not" make the
judgments in the Hirst and Scoppola No. 3 cases more acceptable to the United
Kingdom, where different views are held on participation in the government by
those who have violated the basic rules of that same democracy.128 And even in
sensitive cases such as those relating to assisted suicide or abortion, where
reactions to the Court's use of meta-teleological interpretation have been
surprisingly mild, that is probably mainly due to the fact that the Court has
compensated for the widening of scope in these cases by allowing a wide margin
of appreciation for restrictions.129
Clearly, thus, the magic' of relating new interpretations to central aims,
principles and values of the Convention wears off easily and in the end may cease
to convince the audience. Moreover, it seems clear that the persuasive force of
meta-teleologieal and evolutive interpretation is reduced if political and popular
opinions..on certain issues are deeply felt. References to underlying principles
cannot compensate for the feeling that an outsider intrudes on national values
and sentiments that are considered to be of great importance. In these cases, the
i24 ECtHR 3 March 2009, appl. no. 30814/06.
.25 For a discussion of the criticism, see e.g. D. MCGOLDRICK, -Religion in the European Public
Square and in European Public Life - Crucifixes in the Classroom?', Human Rights Law
Review (2011) pp. 451-502, and PIRET, supra n. 24.
.26 ECtHR (GC) 18 March 2011, appl. no. 30814/06.
127 Othman (Abu Qatada) v. UK, ECtHR 17 January 2012, appl. no. 8139/09. See in particular the
critical response by UK Prime Minister Cameron: <
128 For the judgments, see Hirst v. UK, ECtHR (GC) 6 October 2005, appl. no. 74025/01 and
Scoppola (No. 3) v. Italy, ECtHR (GC) 22 May 2012, appl. no. 126/05. For a brief review of the
debate in the UK, see The Economist 10 February" 2011, -Britain's mounting fury over
sovereignty' <>, see
^ns,° ^,NI^C<?,L' 'LeBitlmacy of the Commons debate on prisoner voting'. Public Law (2011) pp.
681-691; S. BRIANT, "Dialogue, diplomacy and defiance: prisoners' voting rights at home and
in Strasbourg', Human Rights Law Review (2011) pp. 247-249.
"" See e.g. A., B. and C. v. Ireland, ECtHR (GC)' 16 December 2010, nr. 25579/05; Haas v.
Switzerland, ECtHR 20 January 2011, appl. no. 31322/07.
Janneke Gerards
pull factor of national sovereignty is very powerful and the Court should tread
carefully so as not to offend national views. If it makes strategic mistakes in this
respect, and if it does so too often, it may trigger sharp criticism and accusations
of political case-law and activism.
4.4.2. The disadvantages of consensus interpretation
Consensus interpretation may also be risky from the perspective of legitimating
the Court's interpretations. This type of interpretation is especially vulnerable if
it is used to support an interpretation where there is no clear convergence of
national law or if there is no clearly discernible common denominator.130 The
problems related to the method can be illustrated by an example of one of the
contentious cases of the last years, Demir and Baykara v. Turkey.131 Central to
this case was the question of whether freedom of association - more specifically
the right to become a member of a trade union - should apply to civil servants. A
number of international treaties stipulated that this should be the case, and since
these treaties had been ratified by nearly all Member States of the Council of
Europe, the Court found that there was sufficient consensus to support a new
reading of Article 11 of the Convention. Accordingly, the provision was
interpreted as meaning that all employees, including civil servants, have the
right to be members of a trade union. The respondent state, however - Turkey -
had expressly and deliberately refused to sign or ratify any of the relevant
conventions and treaties, since it explicitly did not want its civil servants to have
access to trade unions. This raised the question of whether the sole fact that most
European states support a certain interpretation suffices to legitimise the
imposition of such an interpretation on states that expressly reject that
interpretation.132 Such use of the consensus method might be interpreted as
forcing a majority opinion on a minority, neglecting national particularities and
national sovereignty, and changing the central rules of international treaty
Cf. LENAERTS, supra n. 115, at p. 886, arguing that it is more likely that a judgment will be
accepted if it is supported by closer convergence.
Demir and Baykara v. Turkey, ECtHR (GC) 12 November 2008, appl. no. 34503/07.
See the (Dutch language) case note ofJ.H. GERARDS in European Human Rights Cases 2009/4,
paras. 11 and 12. Cf. also LETSAS, supra n. 112, at p. 303, and S. VAN DROOGHENBROECK, 'Les
frontieres du droit et 1c temps juridique: la Cour europeenne des droits de 1'homme repousse
les limites', 79 Revue Trimestrielle des Droits de I'Homme (2009) p. 811; they argue that the
Court's approach would be more acceptable if it were fitted into a (meta-)teleological, moral
argumentation; after all, it is then not so much the pure majority argument that counts, but
rather the underlying reasons for adopting it. It is doubtful, however, whether such an
application can still be considered an example of purely consensus-based reasoning.
D. SHELTON, 'The Boundaries of Human Rights Jurisdiction in Europe', 13 Duke lournal of
Comparative and International Law (2003) p. 95 at p. 134.
Chapter 2. The European Court of Human Rights and the national courts
Legal scholars have pinpointed many other problems related to consensus
interpretation.134 It is clear, for instance, that legal comparisons are difficult to
make, especially if one delves a little deeper than a perfunctory assessment of
national constitutions or statutory provisions.135 While consensus is easy to
discover at a high level of abstraction, differences soon become visible if one has
regard to more specific applications by the administration or by the courts.
Moreover, even superficial and general reviews of the legal practice within the 47
States Parties usually make it possible to trace as many similarities as differences,
depending on the precise criterion chosen for comparison.136 This may attract
accusations of cherry picking': it is easy to blame the Court for finding precisely
the type of consensus it needs to support a certain desired outcome137 Such
accusations are also sustained by another difficulty of the method, which is that
it is very difficult to determine when exactly there is consensus'. Complete or
true consensus rarely exists, except perhaps at a very high level of generality.138
Hence, incomplete consensus or tendencies to convergence may suffice as a basis
for common-ground interpretation, but there is then still uncertainty about the
degree to which a predominant trend or uniform tendency really should be
visible to warrant a new interpretation. All in all, it will be difficult for the Court
to indicate with any precision why it has considered that a certain amount of
agreement or disagreement can support a new interpretation of a fundamental
right, or the recognition of a new aspect of a fundamental right. Such practical
difficulties and the ensuing uncertainty threaten the legitimacy-enhancing
character of the method.139
4.4.3. Theproblems of autonomous interpretation
Finally, autonomous interpretation may result in some problems of its own.
Autonomous determination of the meaning of central fundamental rights
notions may create the perception that the Court is striving to empower itself, to
the detriment of the states. In this respect, again,there is a risk of overreaching.140
Although autonomous interpretations are essential from the perspective of
134 See e.g. OST, supra n. 103, at p. 307; L.R. HELPER, 'Consensus, Coherence and the European
Convention on Human Rights', 26Cornell International Law Journal (1993) p. 133 at p.'140;
CAROZZA, supra n. 114, at p. 1225; SENDEN, supra n. 91, at pp. 123 and 265-266.
See e g K DZEHTSARIOU, 'European Consensus: A way of reasoning', UCD Research Paper
No. 11/2009, via <>.
Cf. P. MAHONEY, 'The Comparative Method in Judgments of the European Court of Human
Rights: Reference Back to National Law', in G. CANIVET, M. ANDENAS and D. FAIRGRIEVE.
cds.. Comparative Law Before the Courts (BIICL 2004) p. 135 at p. 149.
e.g. J.H. GERARDS, 'Rechtsvinding door het Europees Hof voor de Rechten van de Mens'
[Legal reasoning of the European Court of Human Rights], in T. BARKHUYSEN et al., eds., 55
JaarEVRM [55 Years ECHR], NJCM-Bulletin (special) (2006) pp. 93-122.
"8 cf- DZEHTSARIOU, supra n. 135, at p. 2; SUDRE, supra n. 110, at p. 123.
139 Cf. CAROZZA, supra n. 114, at p. 1231.
140 Cf. SENDEN, supra n. 91, at p. 183.
Janneke Gerards
Chapter 2. Tlie European Court of Human Rights and the national courts
uniform protection of fundamental rights, such interpretations may result in an
expansion of the Convention's scope and, accordingly, a stronger role for the
Court to decide on the reasonableness of national decisions and measures
affecting fundamental rights. The wide and autonomous definition the Court has
given to rights, such as the right to property, may serve to illustrate this risk.141
As a result of its interpretative approach in these cases, the ECtHR can now
decide on a wide variety of issues that many consider to be reserved to national
policy and decision making, such as inheritance law or social security and social
benefits cases.142 A frequently mentioned example in this context is the Stec case,
in which the Court expressly used an autonomous interpretation to bring all
social benefits, even those paid out of general taxation, within the scope of the
right to property protected by Article 1 of the First Protocol to the Convention.143
The consequence of this judgment, as well as of recent judgments in similar cases,
is that typically 'national' policy domains such as immigration law, social security
and housing are increasingly becoming Europeanised and national authorities
seem to be losing their freedom to design their own policies in these domains.144
Moreover, autonomous definitions may cause legal problems, since
'European' definitions of certain notions may come to co-exist with national
defij»itions of the same terms. As has been stressed in legal scholarship, this may
lead to problems of fragmentation, inequality and legal uncertainty.145 Moreover,
the European definition may start from a different conception of a certain notion
than that used at the national level, which may make it difficult for states to
understand and implement the European conception in a logical manner.146
Again, this may not contribute to the willingness of national authorities to
implement the Court's case-law in their own legislation, policies or case-law.
4.5.1. Introduction
Sections 4.3 and 4.4 demonstrated that the Court's interpretative principles and
methods may be very useful tools in regulating the interrelationship between the
141 Cf. BOSSUYT 2007, supra n. 123, p. 321-332; SUDRE, supra n. 110, at p. 113.
142 On this, see BOSSUYT 2007, supra n. 123, and SUDRE, supra n. 110, at p.113.
143 Stec and Others v. UK, ECtHR (GC), 6 )uly 2005 (dec.), appl. nos. 65731/01 and 65900/01,
paras. 49-53.
144 Particularly critical in this respect is BOSSUYT 2007, supra n. 123; see more generally on the
development M. COUSINS, The European Convention on Human Rights and Social Security
Law (Antwerp, Intersentia 2008) and K. KAPUY, 'Social Security and the European
Convention on Human Rights: How an Odd Couple Has Become Presentable', 9 European
Journal of Social Security (2007) pp. 221-241.
145 See in particular CARTABIA, supra n. 115, at p.l8.
146 See in particular LETSAS, supra n. 25, at pp. 51-53.
147 This section is partly based on GERARDS 2013, supra n. 34.
level of the Court and the domestic level, but also that they may sometimes
backfire, especially if they are not applied with sufficient caution. Interestingly,
over the past ten years the Court seems to have developed two novel applications
of consensus and autonomous interpretation that make these methods more
suitable for application in a context of tension, and which fit well with the general
desire to strive towards shared responsibility: first, the Court may deliberately
opt for a non-autonomous approach, and secondly, the Court may connect the
protection offered by the Convention to national law.148 In both situations, an
interpretation that is dependent on national law seems to be the starting point,
rather than a purely 'European', uniform interpretation. Even though the Court's
judges according to the interviews conducted for this project, do not explicitly
recognise these developments as new', or as consciously developed by the Court
to deal with national sensitivities, it will be shown below that the Court may
easily use them to this end.
4.5.2. Lack of consensus: deliberate choice of a non-autonomous approach
In several important cases the Court has accepted that there is such wide
divergence within the Council of Europe on the meaning of certain notions that
an autonomous definition is not warranted.149 The best example of this is
apparent from the Court's approach to the notion of person contained in
Article 2 of the Convention (right to life). In the case of Vo v. France the question
raised related to the moment from which a human being should qualify as a
person in the meaning of this provision."" According to some this should be
from the moment of conception, while others have argued that the right should
only apply-from the moment of birth. In its judgment in Vo, the ECtHR expressly
refused to resolve the issue, referring to the divergence of popular and scientific
opinions within and between the European states. As a result of this refusal to
give an autonomous reading, the states may give their own definitions of the
notion. This means that the scope of application of Article 2 may differ from one
European state to the other."1 This may be difficult to accept in terms of equality
Thirdly, it is dear that the Court does not use autonomous interpretation in respect to all
provisions of the Convention. It is disputed, however, whether this is intentional or incidental;
^ ^^rt^tsdf,has "ot expressed reas°ns for this (see further SENDEN, 5u^ran.91,atpp.
180-I8I) For this reason, these -silent' forms of non-autonomous interpretation are not
discussed in this paper.
No attention is paid here to the particular situation in which provisions of the ECHR
expressly refer to national law, as in the case of Article 12; in such'cases it would be neither
l-?8ical^r approp"ate for the court to provide an autonomous definition, although it has
stressed that even then it will police the borders' to see if a minimum level of protection is
suffiaentlyguaranteedandtheveryessence °fthe right is not impaired - see Parry v^UK,
ECtHR 28 November 2006 (dec.), appl. no. 42971/05.
"° Vo v. France, ECtHR (GC) 8 July 2004, appl. no. 53924/00, paras. 82-85.
151 See Evans v. UK, ECtHR 7 March 2006^ appl. no. 6339/05, para. 46.'Uis has been critic
assessed by some; see e.g. T. GOLDMAN, 'Vo v. France and Fetal Rights: The Decision Not To
Janneke Gerards
and uniformity, yet it is justifiable in that it respects national diversity on highly
sensitive moral issues.
Although the Vo case may be regarded as a singular example, there are
more cases in which the Court takes national diversity into account in defining
Convention rights. In Kimlya v. Russia, for example, the Court pointed out
that, '[i]t is clearly not the Court's task to decide in abstracto whether or not a
body of beliefs and related practices may be considered a "religion" within the
meaning of Article 9 of the Convention. In the absence of any European
consensus ... the Court considers that it must rely on the position of the
domestic authorities in the matter and determine the applicability of Article 9
of the Convention accordingly'.152 The Court did not offer an autonomous
definition of 'religion in this case, rather referring back to the national
definition and determining the applicability of Article 9 on that basis. Similarly,
in the case of Boulois v. Luxembourg the Grand Chamber recalled that, in
determining whether Article 6 is applicable to the 'determination of civil rights
and obligations', the starting point for its definition must be the provisions of
the relevant domestic law and their interpretation by the domestic courts.153
Even though in this case it carefully evaluated whether the national definition
of a certain discretionary power could not be defined as a 'right' for the
purposes of Article 6, it is clear that the definition in this case is a dependent
rather than an autonomous one.154
Hence, even though autonomous interpretation can still be regarded as the
gold standard' for the Court and recent case-law, and the Court has reiterated
the importance of such autonomous definitions for the protection offered by the
Convention,155 the judgments discussed in this section demonstrate that the
Court sometimes may decide not to apply the method. By doing so it affords the
national authorities great leeway to regulate the relevant topics as they think
most appropriate, and to national judges to give their own interpretations of the
Decide', 18 Harvard Human Rights Law Journal (2005) p. 277 at p. 279.
"2 Kimlya and Others v. Russia, ECtHR 1 October 2009, appl. nos. 76836/01 and 32782/03, para.
79. See also SENDEN, supra n.91, p. 296.
i» Boulois v. £un'm()ur?,ECtHR (GC) 3 April 2012, appl. no. 37575/04, para. 91; for a similar
example, see Roche v. UK. ECtHR (GC) 19 October 2005, appl. no. 32555/96,_para. 120.
Evidently, the Court also does not rely on an autonomous approach if the Convention
expressly refers to national law, as is the case with Article 12 (right to marry); see in particular
Schalk and Kopfv. Austria, ECtHR 24 June 2010, appl. no. 30141/04, para. 61.
1s4 For a similar'example in which the Court relied at least partly on national definitional
elements, see Vilho Eskelmen v. Finland, ECtHR (GC) 19 April 2007, appl. no. 63235/00, para.
61 - here the Court gives a sort of 'semi-autonomous' interpretation. See further SENDEN,
supra n. 91, p. 295.
"5 e.g. Micallefv. Malta. ECtHR (GC), judgment of 15 October 2009, appl. no. 17056/06.
A Q Intersentia
Chapter 2. The European Court of Human Rights and the national courts
4.5.3. Dependency, or the 'in for a penny, in for a pound' approach
Another sign of care in the use of autonomous interpretation is visible in a rather
new approach of the Court, which might be described as its 'in for a penny, in for
a pound' approach.156 An example may serve to illustrate this. The case ofJS.B. v.
France concerned a conflict on the desire of a single, lesbian woman to adopt a
child.157 In a long line of cases the Court has given an autonomous reading to
the notion of respect for family life, protected by Article 8 of the Convention, to
the effect that this notion only covers established family life. The creation of a
family, either through adoption or otherwise, does not come within the scope of
the Convention. French legislation, however, did recognise a right to adoption
and even a right to adoption for singles. In its judgment in E.B., the Courts
Grand Chamber held that because this right was recognised in French law, it
should be guaranteed in conformity with the Convention. This implied, for
example, that the right should be granted non-discriminatorily, which in this
case meant that E.B.'s homosexuality ought not to have played a decisive role in
the refusal of her adoption request. The protection of the Convention in this case
clearly depended on the existence of a right recognised in national law. The
Court has also applied this line of reasoning to social security law, extending the
Convention's protection to 'those rights for which the State has voluntarily
decided to provide',158 and to cases concerning sensitive issues such as
abortion159 or special provisions for cohabiting partners.160
The in for a penny, in for a pound' approach does not reflect an autonomous
interpretation of the Convention, but evidently relies on an approach that
u6 Although the Court often refers to older case-law as a basis for the use of this approach
(mostly only the Belgian Linguistics case (ECtHR 23 July 1968, appl. nos. 1474/62 and others)),
it has only really developed this approach since the case of Stec and Others v. UK. where it was
applied rather implicitly (ECtHR (GC), 6 July 2005 (dec.), appl. nos. 65731/01 and 65900/01,
in particular paras. 51 and 55). See further on this also (all in Dutch) R.A. LAWSON, 'Boven
het maaiveld. Over de "ruimhartige" toepassing van het EVRM door nationale rechters'
[Above the ground level. About the generous' application of the ECHR by national courts],
in: T BARKHUYSEN et al., eds., Geschakeld recht. Verdere studies over Europese grondrechten
ter gelegenheid van de 70s" verjaardag van Prof. Mr. E.A. Alkema [Interconnected law. Further
studies about European fundamental right at the occasion of the 70th birthday of Prof. Dr.
E.A. Alkema] (Deventer, Kluwer 2009) pp. 307-323; the case note of N.R. KOFFEMAN to
Schalk and Kopfv. Austria, European Human Rights Cases 2010/92; and GERARDS, supra
D.81, at pp.58-62. VAN DE HEYNING has also written on the topic, but she has connected it
more closely to Article 53 ECHR; see supra n. 33 at p. 191.
157 E.B. v. France, ECtHR (GC) 22 January 2008, appl. no. 43546/02.
158 See e.g. Moskal v. Poland, ECtHR 15 September 2009, appl. no. 10373/05, para. 38; Carson v.
UK' E_ctHR (GC^ 16 March 2010' aPPL n0' 42184/04, para. 63; Andrle v. Czech Republic,
ECtHR 17 February 2011, appl. no. 6268/08; j3. v. UK, ECtHR 14 February 2012, appl. no.
1511 e.g. Tysiac v.'Poland, ECtHR 20 March 2007, appl. no. 5410/03, and R.R. v. Poland, ECtHR
26 May 2011, appl. no. 27617/04.
160 e.g. P.B. and J.S. v. Austria, ECtHR 22 July 2010, appl. no. 18984/02, para. 33.
Inteisentia i\ n
Janneke Gerards
depends on national law. This may result in differences in the scope and level of
protection between the various States Parties, especially where some states have
created and recognised many more rights than others. On the other hand, it fits
well with a perspective of shared responsibility between the states and the Court
for compliance with the Convention. By signing and ratifying the Convention,
the states have agreed to respect the fundamental rights contained therein for all
of their acts.161 It would be hard to deny, then, that such rights are applicable to
all government measures and policies that fall within the general scope of the
Convention, regardless of whether the Convention itself imposes an obligation
on the state to provide certain rights. It would be impossible to reconcile such
selective applicability of the prohibition of discrimination, the right to an
efifective remedy or the right to a fair trial with the primary obligation of the
states under Article 1 of the Convention to respect fundamental rights.162 The 'in
for a penny, in for a pound' approach builds on this by simply requiring the state
to accept the consequences of regulating a matter that touches on fundamental
rights.163 Simultaneously, it allows the Court to supervise the compliance with
Convention rights, thus enabling it to strive for a reasonable level of protection of
Convention rights in all states. Thus, the method reconciles the desire for
natfonal sovereignty (states may decide, after all, not to provide certain rights or
benefits) and the need to safeguard fundamental rights.
161 In the Belgian Linguistics case (ECtHR 23 July 1968, appl. nos. 1474/62 and others), the
Court gave the following arguments for an approach such as is now commonly followed by
the Court: 'persons subject to the jurisdiction of a Contracting State cannot draw from
Article 2 of the Protocol the right to obtain from the public authorities the creation of a
particular kind of educational establishment; nevertheless, a State which had set up such
an establishment could not, in laying down entrance requirements, take discriminatory
measures within the meaning of Article 14 ... To recall a further example ... Article 6 of
the Convention does not compel States to institute a system of appeal courts. A State
which does set up such courts consequently goes beyond its obligations under Article 6.
However it would violate that Article, read in conjunction with Article 14 .... were it to
debar certain persons from these remedies without a legitimate reason while making them
available to others in respect of the same type of actions. In such cases there would be a
violation of a guaranteed right or freedom as it is proclaimed by the relevant Article read
in conjunction with Article 14. It is as though the latter formed an integral part of each of
the Articles laying down rights and freedoms. No distinctions should be made in this
respect according to the nature of. these rights and freedoms and of their correlative
162 The Court confirmed in G.R. v. the Netherlands that the right to an effective remedy
guarantees the availability at national level of a remedy to enforce the substance of the
Convention rights and freedoms in whatever form they may happen to be secured in the
domestic legal order' (ECtHR 10 January 2012, appl. no. 22251/07, para. 44).
l63 In a rather similar vein, the Court has sometimes held that States that have set certain
standards for fundamental rights protection can be required under the Convention to
respect their own standards, even if they may not be standards that the Convention itself
has set - see e.g. Orchowski v. Poland, ECtHR 22 October 2009, appl. no. 17885/04, para.
123 and M.S.S. v. Belgium and Greece, ECtHR (GC) 21 January 2011, appl. no. 30696/09,
para. 250.
Chapter 2. The European Court of Human Rights and the national courts
This aim of this section was to highlight the Court's use of evolutive and
autonomous interpretation, employing such methods as consensus and meta-
teleological interpretation to arrive at interpretations that protect Convention
rights in a practical and effective manner, while respecting the national courts'
obligation to provide for definitions and interpretations which fit in well with
their own legal and constitutional systems. It has been demonstrated that these
methods and principles are well chosen from the perspective of fulfilling the
main functions of the Court, as described in section 2.3, but if they are not
carefully applied they may easily backfire. Much of the criticism levelled at the
Court is inspired by judgments in which consensus interpretation, autonomous
interpretation or meta-teleological interpretation play a significant role. The
magic of referring to underlying values seems to have worn off and it has
.become obvious that consensus interpretation may be equivalent to cherry
picking' Thus, there is a need for the Court to tread carefully and avoid
Over the past fifteen years, however, the Court has developed new
applications of its classical' methods that seem to be more in line with the
notion of shared responsibility between the Court and the national courts to
safeguard fundamental rights. The Court has made it clear that a lack of
consensus may sometimes imply that no autonomous interpretation is adopted,
thereby accepting that national authorities (including national courts) give their
own interpretations. In other cases, it has done no more than connect the
Convention's protection to rights already and voluntarily provided and
protected by national authorities.
Thus, even if the Court still adheres to its main principles of evolutive and
autonomous interpretation, it now often gives room to the states to protect the
Convention in their own way. Seen in terms of the desire to treat national
authorities as allies in the project of protecting the Convention, these are
important and interesting developments, which could help reduce the tension
between the Court and the national authorities. Moreover, these developments
demonstrate that the Court does not want to oblige the national courts to act as
its marionettes - rather, it encourages the national courts to provide for
independent and high-level protection of Convention rights in a manner which
is compliant with their constitutional and legal systems.
fanneke Gerards
The previous section discussed the use of classical methods of interpreting the
Convention and their development and use by the Court. Much of the current
debates about the Court and its case-law are expressly related to the application
of these methods and the corresponding expansion of the Convention, as well as
increased control by the Court. There is much more to be said about the legal
argumentation of the ECtHR, however. In interpreting and applying the
Convention in pursuance of the aims described in section 2 above, the Court has
always shown great awareness of the difficulties of its supranational and
subsidiary position and it has developed several techniques that are particularly
helpful in positioning itself. The two judicial techniques used most frequently in
this respect are procedural review and 'judicial minimalism', i.e. the choice of
'narrow' and 'shallow' reasoning. These methods help the Court to avoid
proftiund, substantive and moral choices in sensitive issues and delicate cases,
and they also prevent it from exercising a role as a 'court of fourth instance.
Moreover, they are useful to the Court if it is internally divided over certain
cases, e.g. because some judges would like to go further than others (offering
more protection to fundamental rights).
This section discusses the capacity of these two mechanisms to reduce the
tension between the supranational and the national level and the way the Court
has used them to empower the national courts and facilitate their
co-responsibility for the protection of Convention rights. The downside of the
use of both methods is also discussed: the Court sometimes uses the techniques
in such a way that they attract national criticism and are at odds with the
achievement of the Convention's main objectives.
5.2.1. Advantages of the use of procedural review
Instead of assessing the substantive reasons provided by the states in justification
of an interference with a fundamental right, the Court increasingly focuses on
the quality and transparency of the national procedures and judicial remedies
that have been used in relation to the disputed decision or rule.164 The first
variant of this technique of 'procedural review' focuses on the national
164 This section is loosely based on GERARDS, supra n. 81, section 2.8.
Chapter 2. The European Court of Human Rights and the national courts
procedures for decision making or legislation. If it is clear that a decision or rule
is prepared and adopted with the greatest care and after extensive deliberation,
in an open or transparent decision making process, the Court will quite readily
accept the conformity of such a decision or rule with the Convention. It will then
simply accept that sound decision making procedures usually result in acceptable
and permissible outcomes. An example of this is visible in the case of Maurice v.
France,165 which related to the very sensitive and complex issue of compensation
in cases of wrongful birth. The applicants argued that the relevant legislation,
the Loi Perruche, violated their rights under Article 8 of the Convention because
it offered a generally lower level of compensation than they could have obtained
under the former case-law of the French courts. In its judgment in the case the
Court paid close attention to the quality of the process that had led to the
adoption of the Loi Perruche. It stressed that there had been a 'stormy nation-
wide debate' on the issue, in which politicians, interest groups and individuals
had participated, and that close attention had been paid to all relevant legal,
ethical and social considerations. It concluded that 'there is no serious reason for
the Court to declare contrary to Article 8 ... the way in which the French
legislature dealt with the problem or the content of the specific measures taken
to that end'.166 The Court did not address the substantive issues of reasonableness
and proportionality of the interference, rather restricting its review to purely
procedural matters.
By contrast, in the case of Hirst v. United Kingdom,167 the Court found it
problematic that the British parliament had never expressly and extensively
deliberated on the choice to exclude all prisoners (regardless of the duration of
their sentence or the nature of the crimes committed) from the right to vote. It
seemed that, regardless of the substantive reasons for and against such a
complete, blanket prohibition, the Court would not have accepted the legislation
for the lack of procedural safeguards surrounding its adoption.168 Again, thus, the
Court (at least partly) avoided a substantive assessment of the reasonableness of
the exclusion of prisoners by relying on procedural arguments.
Maurice v. France, ECtHR (GC) 6 October 2005, appl. no. 11810/03.
Maurice, supra n. 165, para. 124.
Hirst (No. 2) v. UK, ECtHR (GC) 6 October 2005, appl. no. 74025/01.
This is apparent in particular from the following considerations: 'As to the weight to be
attached to the position adopted by the legislature and judiciary in the United Kingdom,
there is no evidence that Parliament has ever sought to weigh the competing interests'or to
assess the proportionality of a blanket ban on the right of a convicted prisone'r to vote. ... [I]t
cannot be said that there was any substantive debate by members of the legislature on the
continued justification in light of modern-day penal policy and of current human rights
standards for maintaining such a general restriction on the right of prisoners to vote. It is also
evident from the judgment of the Divisional Court that the nature-of the restrictions, if any,
to be imposed on the right of a convicted prisoner to vote was generally seen as a matter for
Parliament and not for the national courts. The court did not, therefore, undertake any
assessment of proportionality of the measure itself.' (Hirst (No. 2) v. UK, ECtHR (GC)
6 October 2005, appl. no. 74025/01, paras. 79-80).
Janneke Gerards
A second variant of the Court's procedural approach is visible in relation to
national judicial remedies. There are many cases in which disagreement and
conflict about the outcome is not so much related to the proper interpretation of
fundamental rights, as to different views on the weight of the interests concerned
and the way they should be balanced. Cases of defamation and the publication of
photographs are notorious examples: if there is a conflict between the right to
reputation and the right to freedom of expression, the weight accorded to the
various interests determines the outcome, but views on what the appropriate
weight should be almost unavoidably differ.169 Moreover, in some cases the
'better placed' argument is of particular importance.170 Cases relating to family
law matters, such as care orders and visiting rights, or immigration cases, such
as cases relating to expulsion, often involve evaluations of facts and weighing of
interests. In such cases, national authorities often have more direct access to
evidence and expert opinions and they may be in a better position to gauge the
possible consequences of a certain decision. In such cases, the Court increasingly
does not give its own opinion on the balance to be struck between the interests
concerned. Instead, it checks whether sufficient procedural guarantees have been
offered and whether the national courts have respected all the requirements of a
fair trial.171 In particular, the Court requires that they apply the Convention
standards as developed in the Court's case-law. If the national courts have done
so, this means that the Court will not readily overturn their decisions for
substantive reasons, as it made clear in the case of Von Hannover (No. 2) v.
'Where the balancing exercise has been undertaken by the national authorities in
conformity with the criteria laid down in the Court's case-law, the Court would
require strong reasons to substitute its view for that of the domestic courts.'172
169 See also S. SMET, 'Freedom of Expression and the Right to Reputation: Human Rights in
Conflict', 26 American University International Law Review (2010) pp. 183-236.
170 On this argument, see section 2.3.
171 For some recent examples, see Kopfand Liberda v. Austria, ECtHR 17 January 2012, appl. no.
1598/06 (visiting rights); Y.C. v. UK, ECtHR 13 March 2012, appl. no. 4547/10 (placement
order); Ahrens v. Germany, ECtHR 22 March 2012, appl. no. 45071/09 (paternity); Stiibing v.
Germany, ECtHR 12 April 2012, appl. no. 43547/08 (sexual relation between siblings); Nacic
and Others v. Sweden, ECtHR 15 May 2012, appl. no. 16567/10 (expulsion). For older
examples, see e.g. Olsson (No. 2) v. Sweden, ECtHR 27 November 1992, appl. no. 13441/87;
Hokkanen v. Finland, ECtHR 23 September 1994, appl. no. 19823/92; Haase and Others v.
Germany, ECtHR 12 February 2008 (dec.), appl. no. 34499/04; Koons v. Italy, ECtHR
30 September 2008, appl. no. 68183/01 (visiting rights).
172 Van Hannover No. 2 v. Germany, ECtHR (GC) 7 February 2012, appl. nos. 40660/08 and
60641/08, para. 107; for earlier examples, see e.g. Hacquemand v. France (ECtHR 30 June
2009 (dec.), appl. no. 17215/06); White v. Sweden, ECtHR 19 September 2006, appl. no.
42435/02; Balsyte-Lideikiene v. Lithuania, ECtHR 4 November 2008, appl. no. 72596/01; Aksu
v. Turkey, ECtHR 15 March 2012, appl. nos. 4149/04 and 41029/04; MGN Limited v. UK,
ECtHR 12 June 2012, appl. no. 39401/04. On this, see also TULKENS, supra n. 13, at p. 9.
Chapter 2. The European Court of Human Rights and the national courts
Although the Court still re-assessed the facts and interests at stake in the case. it
is dear that this method of procedural review may help the Court to avoid the
type of criticism related to substantive review.173 Moreover, it can help it to limit
the number of applications relating to these 'fine-tuning' issues, as this case-law
makes clear that they can just as well be resolved at the national level.174
The Court's procedural case-law also shows its willingness to follow national
judicial interpretations of the Convention that are based on national
(constitutional) law provisions that correspond with Convention's provisions.
This is readily apparent from the case of Urban and Urban v. Poland,175 where
the Polish constitutional court had found the regulations for assessors', a type of
quasi-independent judges, to be in violation of the Polish constitution.' The
Polish government disagreed with this finding and tried to entice the ECtHR to
find that the Convention did not require the high level of protection of the right
to an independent court that was set by the Polish constitutional court. The
. ECtHR disagreed:
51 .. [T]he -Court observes that in constitutional complaint proceedings the
Constitutional Court has no jurisdiction to review the compatibility of legislation
with international agreements, including the Convention ... The important
consideration for this Court is that the Constitutional Court found that the manner
in which Poland had legislated for the status of assessors was deficient since it lacked
the guarantees of independence required under Article 45 § 1 of the Constitution.
guarantees which are substantively identical to those under Article 6 §1 of the
Convention. It would be justified for the Court to reach a contrary conclusion only if
it was satisfied that the national court has misinterpreted or misapplied the
Convention provision or the Court's jurisprudence under that provision or reached a
conclusion which was manifestly ill-founded.'
Thisdiows that the Court will be reluctant to rectify a national interpretation of
the Convention if the national constitutional court has made a clear effort to
take the Court's jurisprudence into account.176 In fact, it will only do so if the
national court's interpretation is clearly in violation of the ECtHRs own
interpretation. This is true even if the Court's interpretation is not directly based
on the Convention, but rather on national constitutional law, as long as the
Court s case-law is taken into account.
Conversely, the Court actually requires that national procedures meet the
demands of fairness, transparency and openness. If a judicial procedure lacked
equality of arms, if a national decision was insufficiently reasoned, or if
investigations into a possible violation were insufficiently expeditions and
173 See also GERARDS, supra n.78,at pp.173-202.
Cf. KELLER and STONE SWEET, supra n. 78, at p.700.
ECtHR 30 November 2010, appl. no. 23614/08.
See also VAN DE HEYNING, supra n. 33, p. 209.
Janneke Gerards
independent, the Court may find a violation of substantive provisions of the
Convention, even if the shortcomings were primarily procedural in nature.177
Requirements of a fair trial (Article 6 ECHR) or an effective remedy (Article 13)
are frequently incorporated and translated into positive obligations on the
government.178 By meeting such procedural requirements the states can more
easily comply with their primary obligation to protect the Convention rights,
which would imply that the Court would have to intervene less often in the
future. By adopting such a procedural approach, the Court therefore clearly
expresses the notion of shared responsibility.179 Moreover, it leaves much leeway to
the national authorities, even if it, at the very same time, obliges them to take the
Convention really seriously and to apply the standards developed by the Court.
5.2.2. Going too far?
Regardless of the great advantages of procedural review from the perspective of
enhancing shared responsibility for compliance with the Convention, there are
some significant difficulties related to the particular use of this form of review by
the Court. This is already apparent from the contentious case of Hirst v. United
Kingdom, which appears to lie at the heart of the recent British criticism of the
Court.180 Clearly, relying on procedural review did not help the Court to arrive
177 For some examples, see Sayoud v. France, ECtHR 26 July 2007, appl. no. 70456/01, paras.
22-24; Lombardi Vallauri v. Italy, ECtHR 20 October 2009, appl. no. 39128/05, paras. 52-55;
Fatullayev v. Azerbaijan, ECtHR 22 April 2010, appl. no. 40984/07, para. 124; Sapan v. Turfce^,
ECtHR 8 June 2010, appl. no. 44102/04, paras. 38-40; Ozpinar v. Turkey, ECtHR 19 October
2010, appl. no. 20999/04, paras. 77-78.
178 Par some examples, see e.g. Grosaru v. Romania, ECtHR 2 March 2010, appl. no. 78039/01,
para. 47 and, more recently, G.R. v. the Netherlands, ECtHR 10 January 2012, appl. no.
22251/07; Szerdahelyi v. Hungary, ECtHR 17 lanuary 2012, appl. no. 30385/07; I.M. v. France,
ECtHR 2 February 2012, appl. no. 9152/09; Y.C. v. UK, ECtHR 13 March 2012, appl. no.
4547/10; K.A.B. v. Spain, ECtHR 10 April 2012, appl. no. 59819/08; Pleso v. Hungary, ECtHR
2 October 2012, appl. no. 41242/08; Singh and Others v. Belgium, ECtHR 2 October 2012,
appl. no. 33210/11.
179 See also L. WILDHABER, 'A Constitutional Future for the European Court of Human Rights?',
23 Human Rights Law Journal (.2002) p. 161 at p. 162.
180 Hirst (No. 2) v. UK, ECtHR (GC) 6 October 2005, appl. no. 74025/01. For a short overview of
the debate, see The Economist 10 February 2011, 'Britain's mounting fury over sovereignty'
<>. After the most
recent Grand Chamber judgment in Scoppola, the following quote from the Prime Minister's
Question Time in the House of Commons (23 May 2012) may illustrate the current British
government's attitude to the Court: 'Nigel Dodds MP; Will the PM give an undertaking that
he will not succumb to the Diktat from the European Court of Human Rights in relation to
prisoners' voting, that he will stand up for the resolution that was passed in this House by an
overwhelming majority, and that he will stand up for the sovereignty of this House and the
British people? David Cameron MP (Prime Minister): Well the short answer to that is Yes. I
have always believed that when you are sent to prison you lose certain rights, and one of those
rights is the right to vote. And crucially I believe this should be a matter for Parliament to
decide, not a foreign court. Parliament has made its decision and I completely agree with it.'
See also <>
Chapter 2. The European Court of Human Rights and the national courts
at a persuasive and acceptable decision. This may have to do with one particular
element of the case, which is the criticism the Court levelled at the British choice
of a blanket rule that was to be applied indiscriminately to all prisoners. The
Court not only criticised the limited discussions in Parliament that preceded the
adoption of this blanket rule, as mentioned above; it also rejected the very idea of
adopting blanket rules in this type of case. It held that legal classifications,
especially if legislation interfered with fundamental rights, should be as precise
as possible and should be proportionate to the aim pursued. If legislation is
overly broad or over-inclusive, excluding a very large and indeterminate group
from exercising a fundamental right, this is not acceptable. In the later case of
Frodl v. Austria the Court stressed this even more strongly, actually requiring
individual judicial review in all cases where prisoners were excluded from the
right to vote:
33. As regards the conditions for disenfranchisement set out in section 22 of the
National Assembly Election Act, the Court finds that the provision in question is
more detailed than the ones applicable in Hirst ... It does not apply automatically to
all prisoners irrespective of the length of their sentence and irrespective of the nature
or gravity of their offence, but restricts disenfranchisement to a more narrowly
defined group of persons since it applies only in the case of a prison sentence
exceeding one year and only to convictions for offences committed with intent.
34. Nevertheless, the Court agrees with the applicant that section 22 of the National
Assembly Election Act does not meet all the criteria established in Hirst... Under the
Hirst test, besides ruling out automatic and blanket restrictions it is an essential
element that the decision on disenfranchisement should be taken by a judge, taking
into account the particular circumstances, and that there must be a link between the
offence committed and issues relating to elections and democratic institutions ...
35. The essential purpose of these criteria is to establish disenfranchisement as an
exception even in the case of convicted prisoners, ensuring that such a measure is
accompanied by specific reasoning given in an individual decision explaining why in
the circumstances of the specific case disenfranchisement was necessary, taking the
above elements into account.'181
The Court here appeared to require individual court judgments in each and
every case of prisoner disenfranchisement, rather than the application of a
general rule, even if such a general rule differentiated between different groups of
prisoners according to the type of offence or the duration of their sentences.
There are many more situations in which the Court has expressly asked for such
an individualised form of decision making by the Courts.182 Especially in the area
and <
7781521.html>. See also NICOL, supra n.128,at pp.247-249.
181 Frodl v. Austria, ECtHR 8 April 2010, appl. no. 20201/04.
See also STONE SWEET, supra n. 9, at p. 1863. For a few examples, see Dickson v. UK, ECtHR
(GC) 4 December 2007, appl. no. 44362/04; Kubaszewski v. Poland, ECtHR 2 February 2010,
Janneke Gerards,
of family law,183 the Court has stressed time and again that legislative
presumptions are problematic and should be replaced by particularised judicial
decision making.184 A case in point is Schneiderv. Germany,195 which related to a
legal presumption that the mother's husband is the legal father of the child, even
if another man claims to be the biological father and even if he has recognised
the child. According to the Court such general legal presumptions are untenable
in present day conditions:
'100. ... Having regard to the realities of family life in the 21st century ..., the Court is
not convinced that the best interest of children living with their legal father but
having a different biological father can be truly determined by a general legal
assumption. Consideration of what lies in the best interest of the child concerned is,
however, of paramount importance in every case of this kind ... Having regard to the
great variety of family situations possibly concerned, the Court therefore considers
that a fair balancing of the rights of all persons involved necessitates an examination
of the particular circumstances of the case.'186
Thus, the Court seems to depart from a general presumption that individualised
judicial decision making is to be favoured over legislative rules in which
classifications are made to which a certain legal regime applies.187 Exceptions to
this general presumption are visible mainly in those cases where moral issues are
at stake and legal certainty would seem to prevail over individual justice,188 or in
appl. no. 571/04; M.D. and Others v. Malta, ECtHR 17 July 2012, appl. no. 64791/10; Godelli v.
Italy, ECtHR 25 September 2012, appl. no. 33783/09.
183 But certainly not limited to that - see e.g. Bjedov v. Croatia, ECtHR 29 May 2012, appl. no.
42150/09, a case that related to the occupation of a social tenancy flat.
184 Moreover, other demands have been made which the states may find difficult to meet; in the
case of C.A.S. and C.S. v. Romania, for example, the Court found that there is a positive
obligation on the state to provide counseling and psychological assistance to a child that has
fallen victim to violence (ECtHR 20 March 2012, appl. no. 26692/05).
185 ECtHR 15 September 2011, appl. no. 17080/07.
186 For similar examples, see M.D. and Others v. Malta, ECtHR 17 July 2012, appl. no. 64791/10
and Godelli v. Italy, ECtHR 25 September 2012, appl. no. 33783/09.
187 See also Adamsons v. Latvia, ECtHR 24 June 2008, appl. no. 3669/03.
188 See e.g. Evans v. UK, ECtHR (GC) 10 April 2007, appl. no. 6339/05; in this case, it turned out
that all decisions that could be taken in an individual cases would harm the interests of
another individual, making general legislation just as arbitrary as individual decision
making, but more certain and predictable nonetheless; for a similar example, see S.H. and
Others v. Austria, ECtHR (GC) 3 November 2011, appl. no. 57813/00; on this, see also
J. BOMHOFF and L. ZUCCA, 'The Tragedy of Ms Evans: Conflicts and Incommensurability of
Rights', 2 European Constitutional Law Review (2006) p. 424 at pp. 429-430 and (in Dutch)
I.H. GERARDS, 'Concrete redelijkheidstoetsing en de rechtspraak van het EHRM. Over
"mandatory rules", individuele gerechtigheid en de eisen die het Hof stelt aan de nationale
rechtstoepassing' [Concrete reasonableness review and the case-law of the ECtHR. About
'mandatory rules', individual justice and the Court's requirements for national adjudication],
in T. BARKHUYSEN et al., eds., Geschakeld recht. Verdere studies over Europese grondrechten
ter gelegenheid van de 70ste verjaardag van Prof. Mr. E.A. Alkema [Interconnected law.
Further studies about European fundamental rights on the occasion of the 70th birthday of
Chapter 2. The European Court of Human Rights and the national courts
cases concerning social security and planning issues.189 Indeed, the Court's
desire for proportionality review by national courts may be beneficial to its own
position, since in such cases it can easily defer to the national courts and rely on
their protection of fundamental rights.190 Nevertheless, as the responses to the
Hirst Sequel illustrate, the Court's desire for individual justice may be at odds
with national constitutional values and national legal traditions.191 The choice of
rules and legislation rather than individual and particularised decision making
may be inspired by a strong constitutional tradition favouring the sovereignty of
Parliament and formalist values such as legal certainty, predictability and
transparency.192 Although much can be said in favour of non-formalist values
such as flexibility, openness and individual balancing, it is difficult to maintain
in general that individualised decision making should always prevail over
legislative rules and formalism. If that is true, it is certainly understandable that
states in which sovereignty of parliament is very important and in which judicial
review of legislation, or judicial ad hoc balancing, are disfavoured, find it difficult
to accept that a supranational court would dictate a constitutional approach that
is contrary to their own.193 In trying to impose judicial individualised decision
making, and especially in trying to do so in the case of prisoners' voting rights,
the Court seemed to overreach. Trying to achieve a high level of fundamental
rights protection while disregarding national constitutional values simply will
not do - if anything, it will lead to reluctance at the national level to accept and
implement the ensuing Strasbourg judgments.
5.2.3. The Court's response
Although the Court is reluctant to respond directly to national political criticism
(see below, section 7), it appears to be sensitive to comments on its judicial
approach and it takes them to heart in subsequent judgments. A clear example of
this seems to be the case of Scoppola No. 3 v. Italy, which again related to the
issue of prisoners' voting rights.194 This case was different from the case of
Hirst195 to the extent that some differentiation was visible in the relevant
legislation. The legislation distinguished between two different groups of
Prof. Dr. E.A. Alkema] (Deventer, KIuwer 2009) pp. 169-188. However, the case-Iaw is not
entirely consistent here; see e.g. Dickson v. UK, ECtHR (GC) 4 December 2007, appl. no.
189 See e.g. Twizell v. UK, ECtHR 20 May 2008, appl. no. 25379/02; Maggio and Others v. Italy,
ECtHR 31 May 2011, appl. no. 46286/09 and others.
!'° See above, section 5.2.1 and see KELLER and STONE SWEET, supra n. 78, at p. 701.
1511 See extensively on this (in Dutch) GERARDS, supra n, 188,pp.169-188.
192 GERARDS, supra n. 199; see also GERARDS, supra n. 78,at p.199.
193 On this, see also KELLER and STONE SWEET, supra n. 78, at p. 695, explaining that the strong
demands the Court has made in relation to criminal procedure have sometimes proved
difficult to digest for the states.
IM Scoppola (No. 3) v. Italy, ECtHR (GC) 22 May 2012, appl. no 126/05.
195 Hirst (No. 2) v. UK, ECtHR (GC) 6 October 2005, appl. no. 74025/01.
Janneke Gerards
prisoners: prisoners with a sentence of less than three years were deprived of the
right to vote for five years, while prisoners with longer sentences completely lost
their right to vote. Except for this differentiation there was no room for
individualised judicial decision making on disenfranchisement - the Italian
courts simply had to apply the legislative rules. If the Court were to have decided
on this case in line with Frodl and the aforementioned general requirement of
individualised proportionality review, it would have had to find that this did not
meet the requirement for individualisation defined in that case.196 Instead, the
Court held that the legislation disclosed a sufficient amount of differentiation to
meet the test of Hirst. Criticising the Chamber's findings in the Frodl case, it
considered that:
'99. ... the Hirst judgment makes no explicit mention of the intervention of a judge
among the essential criteria for determining the proportionality of a
disenfranchisement measure. The relevant criteria relate solely to whether the
measure is applicable generally, automatically and indiscriminately within the
meaning indicated by the Court ... While the intervention of a judge is in principle
likely to guarantee the proportionality of restrictions on prisoners' voting rights,
such restrictions will not necessarily be automatic, general and indiscriminate simply
because they were not ordered by a judge. Indeed,the circumstances in which the
right to vote is forfeited may be detailed in the law, making its application conditional
on such factors as the nature or the gravity of the offence committed.'
Recalling that the arrangements for restricting prisoners' voting rights vary
considerably from one national legal system to another, the Court then stressed
that the states should be free to adopt legislation on the matter in accordance
with historical development, cultural diversity and political thought within
Europe. It continued, emphasising that:
'102. ... In particular, ... the Contracting States may decide either to leave it to the
courts to determine the proportionality of a measure restricting convicted prisoners
voting rights, or to incorporate provisions into their laws defining the circumstances
in which such a measure should be applied. In this latter case, it will be for the
legislature itself to balance the competing interests in order to avoid any general,
automatic and indiscriminate restriction.'
Although it is difficult to know whether this reasoning is a direct response to the
criticism of the Court's preference for individualised decision making, it is
obvious that the Grand Chamber's judgment heeds the differences in national
constitutional traditions and accepts that some states will favour legislation over
individualised judicial balancing. It even leaves a very wide margin of discretion
to the states to decide on this, though it ends its considerations by stressing that it
See Frodl v. Austria, ECtHR 8 April 2010, appl. no. 20201/04.
Chapter 2. The European Court of Human Rights and the national courts
would remain competent to decide if national legislation would be sufHciently
precise, proportionate and differentiated to meet the Convention's requirements.
In a more recent judgment in Animal Defenders International v. United Kingdom,
the Grand Chamber even went as far as to stress that there is really no need for
individualised decision making in all situations.197 In its judgment it expressly
recognised that there may be very good reason for general measures and blanket
bans and it indicated how it would assess their compatibility with the Convention:
'108. It emerges from that case-law that, in order to determine the proportionality of
a general measure, the Court must primarily assess the legislative choices underlying
it ... The quality of the parliamentary and judicial review of the necessity of the
measure is of particular importance in this respect, including to the operation of the
relevant margin of appreciation ... It is also relevant to take into account the risk of
abuse if a general measure were to be relaxed, that being a risk which is primarily for
the State to assess ... A general measure has been found to be a more feasible means
of achieving the legitimate aim than a provision allowing a case-by-case examination,
when the latter would give rise to a risk of significant uncertainty .... of litigation,
expense and delay... as well as of discrimination and arbitrariness . .. The application
of the general measure to the facts of the case remains, however, illustrative of its
impact in practice and is thus material to its proportionality ...
109. It follows that the more convincing the general justifications for the general
measure are, the less importance the Court will attach to its impact in the particular
110. ... [T]he core issue is whether, in adopting the general measure and striking the
balance it did, the legislature acted within the margin of appreciation afforded to it'.
Clearly, thus, the Court now accepts that there may be good reason to adopt a
blanket rule. In the, light of what was analysed in section 5.2.2, however, it is also
interesting to note that the Court stressed the importance of diligent
parliamentary preparation of such general measures. This may be understood as
an effort by the Court to explain that the violation found in the Hirst case really
did not follow from the general character of the exclusion of prisoners from the
right to vote, but in the lack of sufficient parliamentary debate about the
legislation. It may even be speculated that the Court may use this kind of
argument in favour of the United Kingdom if new voting rights legislation is
adopted which is sufficiently well prepared and debated, even if the substance of
the legislation is not so very different from the present situation.
Accordingly, even though the Court has not expressly recognised this, and
even if it does not at all follow this new approach in all its cases,198 the judgments
in Scoppola No. 3 and Animal Defenders International can be easily regarded as a
response to national criticism. They seem to stem from a conscious effort by the
197 ECtHR (GC) 22 April 2013, appl. no. 48876/08.
Some examples have been given above; see in particular Godelli v. Italy, ECtHR 25 September
2012, appl. no. 33783/09.
Inters entia
Janneke Gerards
Court to search for a proper balance between its desire to protect fundamental
rights and the need to respect national particularities, making use of the
argumentative tool of procedural review.
5.2.4. Conclusion
The aim of this section was to highlight the Court's use of procedural review as
an alternative to substantive review of justifications and substantive balancing.
Procedural review can help the Court to avoid having to take a moral stand on
delicate and controversial matters, such as compensation for wrongful birth or
consent requirements in IVF cases. Moreover, in cases where views on the
reasonable outcome of a case may conflict, such as cases of defamation or
immigration law, procedural review may help the Court to avoid taking sides. In
both types of situation, the use of procedural review is clearly in accordance with
the principle of primarily, which holds that it is up to the states to regulate and
decide matters in accordance with the Convention.
Procedural review also helps the Court avoid exercising the role of a 'court of
fourth instance'. Usually, after all, no renewed assessment of the facts and interests
is nyded if the Court needs only to determine whether sufficient procedural
safeguards were present and if the contested decision or measure has come into
being as a result of transparent, open and fair decision making procedures.
Given the growing importance of procedural review, it is understandable that
the Court has also translated such review into obligations and requirements of a
procedural nature - it needs procedural standards for its own assessment and it
has to make clear to the states what thresholds of procedural fairness must be
set. Nonetheless, the Court sometimes seems to go too far in defining such
standards, as in the situation of requiring individualised decision making by the
national courts. It is important to note for the purposes of this chapter, however,
that the Court appears to be very much aware of the criticism of this approach.
The Scoppola No. 3 and Animal Defenders International judgments of the Grand
Chamber both expressly underline that particularised decision making is not
always needed, even though the ECHR standards should always be respected. By
taking this new approach, the Court evidently leaves more latitude to the
national authorities.
5.3.1. Introduction
The second interpretative device discussed in this section is not often mentioned
in the literature on the Court's methods of interpretation, nor has the Court
Chapter 2. The European Court of Human Rights and the national court!
expressly referred to it. Looking at the Court's case-law, however, it is clear that
judicial minimalism' plays an important role, and has done so for a very long
time. This section analyses the Court s de facto use of 'shallow' and 'narrow
reasoning, i.e. reasoning based on superficial arguments, and reasoning that is
strictly limited to the facts of the case at issue. The following discussion also goes
into how the Court can use this device to its own benefit, i.e. to manoeuvre
between the requirements of effective protection of fundamental rights and
respect for national constitutional values and national diversity, as well as to
reduce tension within the Court itself. Attention is further paid to the
disadvantages of judicial minimalism, which can be found in general values such
as the certainty and predictability of the Court's judgments.
5.3 2. Shallow reasoning
The notion of 'judicial minimalism' was coined by Cass Sunstein.199 He
explained that it is often difficult for courts deciding on sensitive cases to provide
deep' and wide' reasoning. In controversial fundamental rights cases, people
can sometimes agree on a rather abstract or 'shallow' level that a certain
fundamental right exists and should be respected, even if they have different
opinions on the underlying reasons and arguments. In such a situation, a court
such as the ECtHR could try different approaches to justify its choice of a certain
reading of a fundamental right. On the one hand, it might underpin its finding
by referring to 'deep', moral, highly principled arguments. Given the diversity of
opinions of people on such arguments, the judgment might then be difficult to
accept for some. On the other hand, the Court may rely on 'shallow' reasoning,
limiting itself to superficial remarks on the general importance of a certain right
in light of the underlying principles of the Convention or developments" in
Europe, while leaving fundamental issues undecided and trusting the general
acceptance of a certain abstract definition.200 The judgment may then be
acceptable and convincing, even if it does not provide much clarity as to its
underlying reasons, precisely because no real debate on such reasons can ensue
from the judgment.201
The Court uses shallow reasoning in many of its cases.202 Good examples are
visible in relation to the application of the classical methods referred to above: in
C.R. SUNSTEIN, Legal Reasoning and Political Conflict (New York/Oxford, Oxford Universit
Press 1996) pp. 4-5.
Cf also H.-M. TEN NAPEL and F. THEISSEN, The European Court of Human Rights'
Jurisprudence on Religious Symbols in Public Institutions In Comparative Perspective:
Maximum Protection Of The Freedom Of Religion Through Judicial Minimalism?', in
S. FERRARI and R. CHRISTOFORI, eds., Law and Religion in the 21" Century (Farnham,
Ashgate 2010) pp. 313-322 at p. 315.
SUNSTEIN, supra n. 199, at pp.4-5.
See also S. GREER, 'Constitutionalizing Adjudication under the European Convention on
Human Rights', 23 Oxford Journal of Legal Studies (2003) pp. 405-433 at p. 407; MOWBRAY,
lanneke Gerards
applying evolutive interpretation the Court usually restricts itself to very general,
abstract references to accepted values such as human dignity or democracy, to
European consensus or to international standards, rather than to detailed
moral arguments and presumptions.203 In some cases, the Court even merely
presents the outcome of its deliberations without providing any detailed
argumentation.204 In addition, the Court seldom offers a broad definition based
on high-level principles. It usually builds on previous case-law, drawing together
small pieces of argumentation that it has previously provided, and combining
them into a set of general principles or criteria.205 Although the result of this
approach may be a rather 'deep' definition, the Court tends to stress that this is
the unavoidable outcome of small definitional steps taken in previous cases.206
supra n. 114, at p. 61. For the difference between 'shallowness' and 'hollowness', see C.R.
SUNSTEIN, 'Beyond Judicial Minimalism', Harvard University Law School Public Law & Legal
Theory Research Paper No. 08-40 (2008), <> at pp. 5 and 8.
2»3 See e.g. Demir and Baykara v. Turkey, ECtHR (GC) 12 November 2008, appl. no. 34503/97;
Bayatyan v. Armenia, ECtHR (GC) 7 July 2011, appl. no. 23459/03. Many cases in which the
Court refers to 'classic' methods of interpretation, such as textual interpretation or systematic
interpretation may also be regarded as shallow to the extent that such methods allow the
Court to escape from the need to provide substantive, moral arguments. These cases are not
..Siscussed in detail in this paper; for a good example, however, see Pretty v. UK, ECtHR
29 April 2002, appl. no. 2346/02.
lc"t See e.g. Van Hannover (No. 2) v. Germany, ECtHR (GC) 7 February 2012, appl. nos. 40660/08
and 60641/08, in which the Court found the right to respect for one's private life to be
applicable to photos in the following brief consideration: '96. Regarding photos, the Court
has stated that a person's image constitutes one of the chief attributes of his or her personality,
as it reveals the person's unique characteristics and distinguishes the person from his or her
peers. The right to the protection of one's image is thus one of the essential components of
personal development. It mainly presupposes the individual's right to control the use of that
image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece,
cited above, §40).' Perhaps one might expect that a fuller account of the arguments for the
applicability could found in Rekhf and Davowlis v. Greece, ECtHR 15 January 2009, appl. no.
1234/05, but the paragraph referred to is virtually identical to the one in Van Hannover. This
seems to match Sunstein's 'constructive use of silence' to avoid conflict over the outcomes
(SUNSTEIN, supra n. 199, at p. 39).
205 See e.g. United Macedonian Organisation Ilinden and Others v. Bulgaria (No. 2), ECtHR
18 October 2011, appl. no. 34960/04, where the Court provided a rather strong and general
formulation of the notion of pluralism, which was based on a reference to a previous case
(United Macedonian Organisation lUnden and Others v. Bulgaria, 19 January 2006,appl. no.
59491/00), where it referred back to Gorzelik v. Poland, ECtHR (GC) 17 February 2004, appl.
no. 44158/98, paras. 89-93), in which the Court defined pluralism mainly by reference to
what it has held in earlier case-law. This is what Sunstein has described as 'conceptual ascent,
"in which the more or less isolated and small low-level principle is finally made part of a more
general theory' (SUNSTEIN, supra n. 202, at p. 17).
206 Various scholars have remarked that most definitions of central notions, such as 'democracy
or "human dignity' are rather 'thin' or hollow, being limited to largely formalistic and
minimalist requirements; cf. for democracy: S. MARKS, 'The European Convention on
Human Rights and its "Democratic Society"', 66 British Yearbook of International Law (1995)
pp. 209-238 at pp. 231-234; GREER, supra n. 212, at p. 200, and for human dignity: C.
McCRUDDEN, 'Human Dignity and )udicial Interpretation of Human Rights', 19 European
Journal of International Law (2008) pp. 655-724. Some do not agree, however: Ten Napel
finds that the combination between the notions of democracy and pluralism in the Court s
Chapter 2. The European Court of Human Rights and the national courts
Mostly, moreover, the definitions are given at such a high level of abstraction and
generality that'it would be difficult to disagree with them.207
Interestingly, the Court can also use this approach to 'repair' mistakes of
deep reasoning in earlier judgments if it appears that the deep reasoning had
indeed divided the audience. A case in point is the Chamber judgment in the
Lautsi case concerning crucifixes in public schools.208 The Chamber
underpinned its findings in this case on rather deep, moral and principled
grounds, referring to principles of state neutrality and secularism, rather than by
reference to earlier case-law. It is well known that the Chamber judgment led to a
stormy European debate on whether the Court actually could take such a
strongly moral position and simply discard national traditions and national
culture.209 The case was sent to the Grand Chamber and it may come as no
surprise that the Grand Chamber replaced the deep approach with a shallow one
that was reasoned on the basis of careful references to national traditions, the
margin of appreciation doctrine, and previous judgments of the Court.210
Indeed, the general meta-principles on which the Chamber had based its
judgments no longer had a place in the Grand Chamber's judgment. Moreover, it
is difficult to discern on the basis of the Grand Chamber's judgment how
subsequent cases concerning religious expressions in public places will be
decided, which is certainly a hallmark of judicial minimalism.
Shallow' judicial minimalist reasoning, based on precedent and references to
external factors (such as European consensus), thus usually forms the basis for
the Court's approach, rather than deep, moral and principled arguments.211 The
case-law results in a rather "thick, inclusive conception of democracy' (H.-M. TEN NAPEL,
The European Court of Human Rights and Political Rights: The Need for More Guidance',
5 European Constitutional Law Review (2009) pp.464-480 at p. 465); this still is the result,
however, of a 'conceptual ascent', rather than of a wide and deep definition in one individual
judgment. Moreover, Ten Napel has conceded that much of the Court's case-law is not in line
with this thick concept, but sets only minimal requirements with respect to internal
constitutional relations (idem at 479).
Not surprisingly, the definitions given by the Court are criticised because of their vagueness
and multi-interpretability - see e.g. A.J. NIEUWENHUIS, 'The Concept of Pluralism in the
Case-Law of the European Court of Human Rights', 5 European Constitutional Law Review
(2007) pp. 367-384 at pp. 383-384. A good example of an interpretation that is not supported
by deep arguments, but that is still persuasive because of the high level of agreement on an
abstract level is falloh v. Germany, ECtHR (GC) 11 July 2006, appl. no. 54810/00, where the
Court held that the use of evidence obtained by torture always renders a trial unfair (para.
208 Lautsi v. Italy, ECtHR 3 November 2009, appl. no. 30814/06.
For a discussion of the debate, see MCGOLDRICK, supra n. 125, at p. 470 and PIRET, supra
n. 24.
210 Lautsi v. Italy, ECtHR (GC) 18 March 2011, appl. no. 30814/06, in particular para. 68, where
the Court expressly referred to the lack of a European consensus to justify a wide margin of
appreciation and to justify that it did not opt for a substantive argumentation based on state
neutrality or secularism.
Some have severely criticised the Court for using this approach, instead of some form of
moral reasoning; see in particular LETSAS, supra n. 25, at pp.123-126.
Janneke Gerards
advantage of this in pluralist Europe is that the Court can maintain a relatively
high standard of protection without having to take sides on deeply felt
controversies or delicate and sensitive fundamental rights issues. Indeed, it is
obvious that the Court may run into trouble if it forgets this and bases its
reasoning on deeply principled arguments - in a diverse Europe, this may clearly
lead to difficulties of acceptance, of which the Court has to take careful account.
5.3.3. Narrow reasoning, analogical reasoning and general principles
Following Sunstein's argument, it is also advisable for the Court to limit its
interpretations to the bare facts of the cases presented to it, rather than provide a
general interpretation of the Convention. Such narrow interpretations can
easily be understood from the facts of the case and may therefore be fairly
acceptable to the Court's audience. On the other hand, 'wide' interpretations, or
the establishment of general interpretative criteria, may attract strong criticism
if they are not generally agreed. Another great advantage of a line of reasoning
that is closely geared to the individual facts of the case is that it does not set too
strong a precedent. Thus, if it were to appear that a certain judgment is hard to
digetft for the states, or that hindsight shows it was wrongly decided, subsequent
cases can be easily distinguished on the facts and a different line of reasoning
can be adopted. Finally, 'narrow' judgments can have the advantage that all
judges within a Chamber or Grand Chamber agree on them. Especially if a case
were to require an extension of previous case-law, or if there is substantive
disagreement on the appropriate balance that should have been struck between
competing interests, the judges may disagree on the line that should be adopted.
Especially as a 'narrow' judgment hardly sets a precedent and does not create
widely applicable standards, the judges may agree on such a judgment much
more easily than if the judgment had far-reaching consequences for decision
making in a range of similar cases.
It is not surprising, therefore, that the Court's interpretations are usually
closely aligned with the facts of the individual case, even though there are many
examples of cases in which the Court has given a general definition of
autonomous Convention notions.212 Usually the Court does not even give a real
definition of the right at issue. In many of its cases, especially in more recent
years, it simply provides an overview of previous case-law in which it has
recognised certain aspects of rights being protected by the Convention.
Subsequently it holds that a similar issue is (or is not) at stake in the present case
and that, accordingly, the Convention right applies (or not).213 Indeed, even
See already RESS) supra n. 28,at p.719-744. For the exceptions, see in particular the sections
in this report on autonomous decision-making and evolutive interpretation (4.2.1 and 4.2.3).
For an empirical study of the extent to which the Court grounds its judgments in precedent in
order to legitimise its judgments, see Y. LUPU and E. VOETEN, 'Precedent on International
Chapter 2. The European Court of Human Rights and the national courts
though this manner of reasoning is usually not presented as a specific
argumentative approach, stating general principles and applying them to the
individual case is now the Court's prevailing argumentative approach.
But there is more to the Court's minimalism than narrow, fact-based
reasoning. Interestingly, the case-law of the Court discloses a very frequent use
ofanalogical reasoning, even if commentators hardly ever seem to notice this
interpretative technique and the Court does not refer to it explicitly.214
Nevertheless, it is evident that Court actually decides most cases by comparing
the facts of the case before it to the facts of cases that it has decided previously
looking for analogies, similarities and differences.215 In some cases, it finds that
the similarities are sufficiently clear to justify extending a certain line ofcase-law
or a certain interpretation to a new, slightly different set of facts. In other cases,
there may be a reason to distinguish the facts of the case, stopping the
development of the case-law in a certain direction.216 In all such cases there is no
need to provide profound theoretical or substantive arguments for the new
approach.217 Pointing to similarities in facts and arguments and referring to
previous judgments provides sufficient justification for reaching a certain
outcome.218 It is here too that the second 'supranational' advantage of narrow
decision making is visible: not only does this technique have the advantage that
profound moral arguments can be avoided, it also limits the precedential value
of judgments. Accordingly, as mentioned above, if reactions to a certain
judgment seem to make it clear that the Court has overreached and an extension
of a line ofcase-law is difficult for certain states to digest, the Court may just as
easily in a subsequent case make it clear that the previous judgment was based
on a very particular set of facts and no similar judgment is called for in other
cases.219 -
^^rts;^Netw°rk.Analysis_of case citations bythe European Court of Human Rights',
APSA 2010 Annual Meeting Paper, <>,
Cf. SUNSTEIN, supra n. 199, at p. 32: Analogical reasoning is the key to legal casuistry'.
Cf. SUNSTEIN, supra n. 199, at p.65.
For an example in the Court's case-law, see the case of Vajnai v. Hungary, ECtHR 8 July 2008,
appl. no. 33629/06, para. 49), where the Court distinguished the case (which concerned a
prohibition of the wearing of a communist red star) from a previous case on limitations of
^^.of. exPression in Hungary (Rekvenyi v. Hungary, ECtHR 20 May 1999, appl. no.
25390/94), holding that in the current case and after twenty years of democracy, it'was no
longer necessary to allow Hungary additional leeway to combat the danger to democracy that
might be constituted by certain forms of speech.
SUNSTEIN, supra n. 199, at p. 68.
SUNSTEIN, supra n. 199, at p. 67-68.
^^tlr' °ccurred after the case ofNunez v. Norway, ECtHR 28 June 2011, appl. no.
55597/09, in which the Court had given a rather lenient interpretation of Article 8 in a case
concerning the extradition of an illegal immigrant with a minor child. This was carefully
distinguished from in the more recent case of Antwi v. Norway, ECtHR 14 February 2012,
appl. no. 26940/10, paras. 100-101. In doing so, the Court implicitly made it clear that the
approach in Nunez will be strictly limited to a very narrow set of factual circumstances,
making the case far less relevant as a precedent.
Janneke Gerards
One possible disadvantage of narrow' reasoning is the lack of predictability
and legal certainty in which it results; indeed, entirely particularised decision
making may result in arbitrariness. The Court avoids this in part by relying on
the strongly precedent-based approach mentioned above, which allows it to
develop consistent, relatively predictable lines of case-law. Moreover, since
searching for analogies is very similar to searching for common principles and
elements in the Court's own case-law, the Court's approach may even help to
clarify the general meaning of the Convention rights. If a line of case-law is
sufficiently clearly established, the Court can distil the common elements and
criteria that it has used to decide on such cases and it can reformulate them in
the shape of general principles derived from the Court's case-law'.220 In some
situations, lines of case-law are brought together by the Grand Chamber, which
may use previous case-law as a basis to draw up authoritative lists of general
criteria which may subsequently be used by the Court (as well as national courts)
to determine the applicability of the Convention.221 These principles and criteria
may serve as standards or yardsticks to be applied by the Court as well as
national authorities, doing justice to the Court's task to "elucidate, safeguard and
develop the rules instituted by the Convention'.222 A good example is the case of
Ana-ityev, where the Grand Chamber, on the basis of a large number of previous
judgments, defined a list of standards to be applied to determine whether prison
conditions transgress the 'minimum level of severity' of the prohibition of
inhuman and degrading treatment.223 Such lists of standards, which the Court
by now provides in almost all of its judgments, may help to create the reassuring
impression that the Courts decision making is based on a transparent set of
well-established, coherent general principles.
220 Cf. RESS, supra n. 28, at p. 726. This can be done since, as Sunstein notes, 'analogical
reasoning cannot proceed without identification of a governing idea - a principle, a standard,
or a rule - to account for the result in the source and target cases' (SUNSTEIN, supra n. 199, at
P. 65).
221 For a recent example, see Kotov v. Russia, ECtHR (GC) 3 April 2012, appl. no. 54522/00,
paras. 92-107, where the Court, on the basis of earlier case-law, formulated a list of criteria to
be taken into account in determining if someone has acted as a private person or a State
222 See recently Konstantin Markin v. Russia, ECtHR (GC) 22 March 2012, appl. no. 30078/06,
para. 89, in which the Court also stressed that [a]lthough the primary purpose of the
Convention is to provide individual relief, its mission is also to determine issues on public-
policy grounds in the common interest, thereby raising the general standards of protection of
human rights and extending human rights jurisprudence throughout the community of the
Convention States'. As was mentioned in the previous subsection, the Court may even arrive
at a rather wide and deep interpretation of the Convention using this approach in the form of
conceptual ascent, i.e. by bringing small definitional steps of a substantive nature together in
the shape of a wider set of general starting points for the Court's review. For the value of this
approach to the legitimacy of the Court, see Lupu and VOETEN, supra n. 213, at p. 6.
223 Ananyev and Others v. Russia, ECtHR (GC) 10 January 2012, appl. nos. 42525/07 and
60800/08, paras. 141-159.
Chapter 2. The European Court of Human Rights and the national courts
5.3.4. Disadvantages of judicial minimalism
Although judicial minimalism has the obvious advantage of flexibility, it clearly
also has some drawbacks.224 Perhaps the most important problem is that there is
no clarity as to the final aim of analogical reasoning. If each individual case is
decided on its own facts, without a clear sense of direction, the Court may
sometimes end up by having to provide a rather general interpretation that is
difficult for the states to digest.225 An additional disadvantage is that it can take a
long time before it becomes clear what the general principles for applicability of a
certain Convention provision really are.226 This may result in a lack of
transparency as well as in uncertainty and confusion.227 For example, in the
Grand Chamber case ofGillberg, the question that arose was whether the right to
freedom of expression also covers a negative' aspect, i.e. a right to refuse to make
certain information available.228 Although the Grand Chamber admitted that
previous case-law on the issue was scarce and did not give an answer to this
question, it opted for a narrow approach, mentioning that '[t]he Court does not
rule out that a negative right to freedom of expression is protected under
Article 10 of the Convention, but finds that this issue should be properly
addressed in the circumstances of a given case'.229 From the judgment it appears
that no such negative right was accepted, but it will require many more cases to
determine when a negative right can be recognised.230 If the Court had provided
a general definition of the right based on substantive criteria, albeit shallowly
reasoned, it would have provided national authorities with a stronger foundation
224 For a general review, see e.g. SUNSTEIN, supra n. 199,at pp.72-74.
225 Cf. SUNSTEIN, supra n. 202, at p. 2: 'Minimalism might be easiest in the short-run, but in the
long-run, it can be extremely destructive'. See also GERARDS, supra n. 78.
lw Cf. TEN NAPEL and THEISSEN, supra n. 200, at p. 316, arguing that this may be a reason why
the Court has not yet developed a satisfactory philosophy to underpin its judgments on
freedom of religion.
227 Cf. SUNSTEIN, supra n. 202, at p. 14. The Court's judges have sometimes also noted this risk -
see e.g. the dissenting opinion of Judge Martens in the case of Fischer v. Austria, ECtHR
26 April 1995, appl. no. 16922/90, para. 16. Another risk was pointed out by RESS, who
mentioned that states may be less willing to implement the Strasbourg case-law if they are led
to believe that each judgment is solely applicable to the particular facts of the case presented
and does not set a generally applicable precedent (RESS, supra n. 28, at p. 722).
228 Gillbergv. Sweden. ECtHR (GC) 3 April 2012, appl. no. 41723/06.
229 Idem, para. 86.
There are more recent Grand Chamber cases in which the Court gives a rather narrow
judgment that is closely aligned to the facts of the case at issue, even though all of them
contain at least some arguments that are of more general applicability. See e.g. Kononov v.
Latvia, ECtHR (GC) 17 May 2010, appl. no. 36376/04; Taxquet v. Belgium, ECtHR (GC)
16 November 2010, appl. no. 926/05, Perdigao v. Portugal, ECtHR (GC) 16 November 2011,
appl. no. 24768/06; Giuliani and Gaggio v. Italy, ECtHR (GC) 24 March 2011, appl. no.
23458/02; Palomo Sanchez and Others v. Spain, ECtHR (GC) 12 September 2011, appl. no.
Janneke Gerards
on which to base their own Convention case-law.231 Moreover, some scholars
have argued that the need for such clear and general judgments has become even
greater over the last decade. In the context of a large, heterogeneous group of
states, the Court should sometimes take on a pedagogical role', rather than one
limited to case-based decision making.232 The Court thus needs to weigh
carefully the advantages of minimalist decision making against the desire for
general principles and clear criteria.
This section has shown that the Court often uses two important judicial
techniques that are not frequently discussed in the academic literature and that
do not belong to the typical 'Convention canon' of interpretation methods.
Nevertheless, it is obvious that the Court can benefit from the use of both
techniques from the perspective of shared responsibility. The method of
procedural review serves to avoid the need for substantive decision making by
the Court. Instead, the Court bases its judgments on the quality of national
decision making processes, procedural remedies and safeguards. By stressing the
need for procedural justice, as well as by respecting the outcome of careful
national decision making, the Court can give clear expression to the notion of
subsidiarity. The method therefore seems ideally suited to enhance shared
responsibility and stress the primarily of national decision making. Nevertheless,
the reactions to some of the Court's judgments show that procedural review does
not always work and states can feel offended by its application. Thus, as was
concluded for the methods discussed in section 4, it is important that the Court
should avoid overreaching when applying procedural review. As was mentioned
in section 5.3, however, the Court appears to be well aware of this risk, and it
seems to have tried to repair some of the aspects of procedural review that have
been strongly criticised. By doing so, it shows its responsiveness to national
criticism and its willingness to leave the states sufficient leeway to protect
231 Concerning the desirability of such guidance, see e.g. E.A. ALKEMA, 'The European
Convention as a Constitution and its Court as a Constitutional Court', in P. MAHONEY et al.,
eds., Protecting Human Rights: The European Perspective - Studies in Memory ofRolv Ryssdal
(Cologue/Berlin/Bonn/Munich, Carl Heymans 2000) pp. 41-63 at p. 60, and D. NICOL,
'Lessons from Luxembourg: federalisation and the Court of Human Rights', 26 European Law
Review - Human Rights Survey (2001) p. HR/9; see also Judge Martens' dissenting opinion in
the case of Fischer v. Austria, ECtHR 26 April 1995, appl. no. 16922/90, para. 16) and his
dissenting opinion in Fey v. Austria, ECtHR 24 February 1993, appl. no. 14396/88, para. 1. For
criticism of the Court's current approach, see B. HALE, 'Argentoratum Locutum: Is Strasbourg
or the Supreme Court Supreme?', 12 Human Rights Law Review (2012) pp. 65-78 at p. 68.
232 R. HARMSEN, 'The European Convention on Human Rights after Enlargement', International
Journal of Human Rights (2001) pp. 18-43; GREEK, supra n. 202, at p. 407; M. EUDES, La
Pratique Judiciaire Interne de la Cour Europeenne des Droits de I'Homme (Paris, Editions A.
Pedone 2005) p. 292.
Chapter 2. The European Court of Human Rights and the national courts
Convention rights as they think best, although it will of course always want to
make sure that-the minimum level of protection of the Convention rights is
Further, this section has shown that the Court often relies on 'judicial
minimalism by consistently using shallow, narrow or analogical reasoning. It
also has been demonstrated that judicial minimalism, just like procedural
review, is an important and useful tool to search for shared responsibility and a
good balance between fundamental rights protection and subsidiarity. This is all
the more so now that clarity and consistency in the Court's interpretations are
safeguarded by identifying general principles' that can be derived from its case-
law. Nevertheless, especially in cases where clarity and generality of
interpretation are needed, as is often the case where novel questions arise
regarding the scope of the Convention, the Court may prefer to base its judgment
on general criteria and substantive arguments, rather than on an analogical
approach or an analysis of the facts of the case at issue. Argumentation based on
meta-teleological or consensus reasoning is to be welcomed in such landmark
cases, even if narrow and analogical argumentation may be preferred in many
other cases. After all, even if the Court wants to respect national value choices in
many cases, it still has to heed its interpretative and standard-setting tasks,
marking the boundaries of the national authorities' discretion and creating
general principles and criteria that the national courts can apply in their own
In section 3.5 it was explained that the Court regards the protection of
Convention rights as a shared responsibility or a partnership between itself and
the national courts. The Court supervises compliance with the Convention and
protects fundamental rights in the last resort, yet it is up to the national courts to
guarantee protection of the Convention rights in the first place. The previous
sections have shown that the Court may be quite demanding in this respect. The
national courts are asked to adopt the Court's autonomous and evolutive
definitions of Convention rights and apply them in their own case-law. If they do
not do so, or lack the competence to set aside national legislation, the state may
be held accountable for a violation of the Convention. By copying the Court's
mterpretative approach, the national courts can avoid the occurrence of such
violations. Viewed in terms of the Conventions overall objective, which is to
arrive at an adequate level of protection of fundamental rights throughout
Europe, this is clearly desirable.
Janneke Gerards
It has also been shown that the Court has used its argumentative tools in
such a way that national (judicial) choices are respected. By using procedural
review, judicial minimalism and interpretations that depend on national law, the
Court expressly endorses the value of national compliance with the Convention
and stresses the subsidiary character of its own supervisory task. Indeed, the
Court often shows lenience and expresses its approval if the national courts have
fulfilled their obligations, accepting a substantive outcome rather than
re-balancing the interests at issue.
The situation of shared responsibility between the Court and the states (the
national courts in particular) is often expressed in terms of constitutional or
judicial 'dialogue'.233 The notion of dialogue was originally developed to analyse
the relationship between national constitutional courts and the national
legislature ('constitutional dialogue'),234 but it has also been used to describe
contacts between highest national courts; between national courts of different
states; between national courts and the EU Court of Justice; between various
international courts and supervisory bodies; etc.235 The notion of dialogue is
also used to describe a wide variety of contacts and interaction. It may relate to
strictly regulated constitutional procedures between courts and Parliament
(such as the possibility of a 'constitutional override' in Canada or the declaration
of incompatibility in the United Kingdom); to mechanisms that can be used to
deal with diversity in pluralist legal systems (such as the 'margin of appreciation'
doctrine); and even to informal forms of exchange of good practices'.236 In fact,
the notion of dialogue is so wide as to cover virtually all forms of interplay and
interaction between courts inter se or between courts and other institutions.237
Precisely because of the wide meaning of the dialogue notion, it may not
appear to be a very useful tool to analyse the relationship between the ECtHR
and the national courts. Nonetheless, the notion may help to understand the
importance of procedures and mechanisms that inform the states (in particular
the national courts) implementation of the Convention. The Courts pilot
judgment procedure, for example, has been shown to have many elements of
dialogue, both between the Court and the national authorities (including
national courts) and between the Court and the Council of Europe s Committee
of Ministers, and even between the Committee of Ministers and the states.
Likewise, the doctrine of the margin of appreciation, the method of procedural
See e.g. BRATZA 2011, supra n.79, at p.511; BRATZA 2012, supra n. 79, at pp. 26-27; TULKENS,
supra n. 13, at p. 8; LUBBE-WOLF, supra n. 78, at p. 11.
Particularly influential is P. HOGG and A, BUSHELL, The Charter Dialogue between Courts
and Legislatures (Or Perhaps the Charter of Rights Isn't a Bad Thing after All)', 35 Osgoode
Hall Law Journal (1997) p. 75.
See below, section 6.2.1.
See e.g. SLAUGHTER, supra n. 78, at pp. 99-137; GERARDS, supra n. 23. See also M. CLAES et
aL, eds., Constitutional Conversations in Europe (Antwerp, Intersentia 2012).
For a good review of different dialogue theories and claims, see TORRES PEREZ, supra n. 86, at
p. 106.
Chapter 2. The European Court of Human Rights and the national courts
and judicial minimalism, and the reliance on comparative arguments
and national case-law can all be construed in terms of facilitating dialogue and
interaction between the states and the Court.
Nevertheless such a broad analysis of judicial dialogue would not be very
useful in the light of the objectives of this report. Many of the Court's
mechanisms and procedures involve only relatively indirect forms of dialogue;
others have already been well analysed and charted in different studies. For that
reason, this section focuses on a limited number of direct forms of judicial
dialogue, which were mentioned in interviews with the Court's judges and
registrars as important examples of interaction between national courts and the
ECtHR, and which have remained relatively under-studied. First, attention is
paid to dialogue by means ofcase-law, in which the Court by means of its own
judgments expressly responds to national judgments, and vice versa. Secondly,
attention is paid to informal and formal procedures for dialogue, including the
envisaged system of advisory opinions.
6.2.1. Some background: constitutional dialogue and dialogue between courts
In many national constitutional systems, constitutional or highest courts lack
the competence or willingness to set aside Acts of Parliament because of
incompatibility with the national constitution. Given their position in the
constitutional system as a whole, and their specific legitimacy in relation to that
of the legislature, constitutional and highest courts often restrict themselves to
expressing clear criticism of the legislature on a certain piece of legislation,
rather than using powers such as setting aside legislation or even declaring
legislation null and void. After such judgments, it" is up to the legislature to
respond to the criticism, e.g. by amending or replacing a piece of legislation.238 If
amendments have been made, but only to a limited extent, this may trigger new
cases to be brought before the courts, which will then have to pronounce
judgment on the compatibility of the new legislation with fundamental rights
provisions. It is said that this process constitutes some kind of'dialogue' between
the highest court and the legislature: the court speaks, the legislature replies, and
this might go on until the moment arrives that both the court and the legislature
are content with the outcome.239 The so-called 'declaration of incompatibility in
the United Kingdom is a good example of such a dialogue.240 Here, the Supreme
cf'L'B: TItEMBLAY-<The legitimacy of judicial review: The limits of dialogue between courts
^ ?SJI,at^L>resl3 Internatwnal]ournal of Constitutional Law (2005) pp. 617-648 at p. 623.
239 See e.g. R^DIXON, -Weak-Form Judicial Review and American Exceptionalism', 32 Oxford
Journal of Legal Studies (2012) pp. 487-506 at p. 496.
240 See section 4 of the UK Human Rights Act 1998.
Janneke Gerards
Court may find that an Act of Parliament is contrary to the Human Rights Act,
yet such an incompatibility can only be removed by Parliament itself. In its
judgment the Supreme Court will have to set out the problems and flaws of the
Act very clearly in order to enable Parliament to remove the violation, thus
stimulating a response by the legislature.241 In quite a different way, the
Canadian Supreme Court may find a violation of the constitution in an Act of
Parliament, but then Parliament may decide that the legislative provision shall
operate nonetheless.242 Although the legislature seldom uses this power of
'legislative override', it appears that the courts are more careful in their own
approach towards legislation, deferring to the legislature more frequently,
especially if the legislature, in one way or another, has responded to an earlier
judgment in which a conflict with fundamental rights was found.243
In both examples, there is genuine interaction between the highest court and
Parliament, based on an explicit finding of a fundamental rights problem in an
Act of Parliament. The highest court explains where the problems are located
and the legislature responds. It has been argued that there is great value in such
forms of constitutional dialogue and they are to be preferred over 'strong' forms
of judicial review, which imply that the court really has the final say and that the
legislature is simply bound to follow the court's judgment.244 Dialogical
constitutional systems do justice to democratic legitimacy and they are said to
encourage a keen judicial eye for flaws in the legislative process, which may lead
to improvement of the overall quality and legitimacy of the outcomes.245
Of course, such a dialogue between Parliament and the judiciary is difficult
to envisage in respect of the ECtHR, as there is no legislative counterpart that
could act as its interlocutor. Nevertheless, dialogue theory has proved sufficiently
flexible to extend to inter-judicial relations, including relations between national
and supranational or international courts.246 The main characteristic of dialogue
241 On the dialogical quality of the 'declaration of incompatibility' and other mechanisms
contained in the Human Rights Act 1998, see in more detail e.g. T.R. HICKMAN,
.Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998', Public
Law (2005) pp. 306-335 and A. KAVANAGH, Constitutional Review under the UK Human
Rights Act (Cambridge, Cambridge University Press 2009) pp. 128 and 408.
242 See section 33(1) of the Canadian Charter of Rights and Freedoms, the so-called
'notwithstanding' clause. Similar provisions can be found in other Commonwealth countries,
such as Australia and New Zealand. For a review, see DIXON, supra n. 239, at p.490.
243 Cf. DIXON, supra n. 239.
244 For this notion, see in particular M.V. TUSHNET, 'New Forms of Judicial Review and the
Persistence of Rights- and Democracy-Based Worries', 38 Wake Forest Law Review (2003) pp.
245 On the value of dialogue-based systems, see e.g. HOGG and BUSHELL, supra n. 234, and
R. DIXON, 'Creating dialogue about socioeconomic rights: Strong-form versus weak-form
judicial review revisited', 5 International Journal of Constitutional Law (2007) pp. 391-418.
For a more critical view, see TREMBLAY, supra 11. 238, pp. 617-648.
246 See generally SLAUGHTER, supra n. 78,at pp.99-137; A.M. SLAUGHTER, 'A Global Community
of Courts', 44 Harvard International Law Journal (2003) p. 191; R.B. AHDIEH, 'Between
Dialogue and Decree: International Review of National Courts', 79 New York University Law
Chapter 2. The European Court of Human Rights and the national courts
th!"-ls is avoids any courthavingthe fil^ say, but the courts respect each
other's position arid, by means of their judgments, try to arrive at outeomerthat
are acceptable to both levels.^ Acceptance of judicial dialogue may prevent the
occurrence of situations of real conflict between national and European courts
and thereby help to reduce the tension described in section 2.4. The notion'of
dialogue thus fits well with the general notion of shared responsibility
Effective dialogue presupposes the existence and use of judicial instruments
that can be bolster the COOPeration and voluntary acceptance" of
interpretations and findings by both national courts and the'ECtHR. As has
bemshownm sections 4.and 5> the instruments developed and commonly used
by the ECtHR can in principle foster effective dialogue, even if such methods
have some advantages and risks.^ Interestingly, however, beside7the"use'of
^!hKdi^ogic.a1' methods and techniques of argumentation, severarexamples
can be found in the Court's case-law of even more articulated use~o7rthe
possibilities of judicial dialogue, or rather of dialogue by means ofjudgmentZ
?lLsectioIl..highlights two Particular examples: the express 7espons7by"the
Court to criticism and concerns expressed in national case-law (section 6.2.2),
and the express acceptance of changes in case-law that have beenmade'ln
response to one of the Court's judgments (section 6.2.3).
6.2.2. Dialogue at the ECtHR: response to criticism and concerns expressed
in domestic judgments
Especially in recent years the Court has encountered clear criticisms of its case-
hwinAe judgments of national (highest) courts. Perhaps the best" example"of
this relates to the use of hearsay evidence or evidence obtained from'abs'ent
witnesses who cannot be questioned in criminal proceedings.249 in a sequence of
cases, in particular in the case ofAl-Khawaja and Tahery v. United Kingdom250
the Court had ruled that the use of statements of such absent witnesseTwould
violate the right to a fair trial (Article 6 ECHR) if it were the -sole or deasive
^l.dence'.,against the suspect in the criminal case- I" the United Kingdom^
however, there is a longstanding tradition of using of hearsay evidence7eve°nlf'it
is the only evidence against the suspect. Instead of completely rejecting the
fi.TH\(2004) 2029:2163- °" dialosue between the ".'Uon-l courts and the Court of
J^t"neoflthe EuropT union' see in Particular CLAES et al- ^PTn:'236~and'V SKOUURI"S;
^ sn,oflheEuropeancourt rflustice in theEU LegarOri"-and'its"RdatL"nsUp'
247 w.ithNauonai,constitutional courts'. ZeiUchriftfur offentliches Recht(2005) p.^t'p.^S1
In more detail, see the sources mentioned in the previous footnote andGERARDS^"pra'n"23,
alp;-83;.1!"argued there.that this interrelationship could better be described' inrte"rm7of
^dialectics' than-dialogue' (see also AHDIEH, supra n:246, at pp. 2033 and2088),"but smc7th"e
248 term,'dialogue'is more commonly known> it has been used throughout~thi~sreF
See also GERARDS, supra n. 23, at pp.84-85.
Cf. BRATZA, supra n. 79, at p.27.
ECtHR 20 January 2009, appl. nos. 26766/05 and 22228/06.
Janneke Gerards
evidence, as was advocated by the Court, an intricate set of requirements have to
be met to guarantee a fair trial; if these requirements are met, the evidence may
still be used. Given this domestic legal system, the UK courts found that the
Court's interpretation of Article 6 was too strict and it did not do justice to the
safeguards inherent in the British system. For this reason. Lord Phillips of the
(then) House of Lords (now the Supreme Court) expressly stated in the case of
Horncastle that it would not accept the Court's reading of the Convention:
'The requirement to "take into account" the Strasbourg jurisprudence will normally
result in this Court applying principles that are clearly established by the Strasbourg
Court. There will. however, be rare occasions where this court has concerns as to
whether a decision of the Strasbourg Court sufficiently appreciates or accommodates
particular aspects of our domestic process. In such circumstances it is open to this
court to decline to follow the Strasbourg decision, giving reasons for adopting this
course. This is likely to give the Strasbourg Court the opportunity to reconsider the
particular aspect of the decision that is in issue, so that there takes place what may
prove to be a valuable dialogue between this court and the Strasbourg Court. This is
such a case.'251
Lor9 Phillips went on to argue that the 'sole or decisive rule' had been introduced
into the Strasbourg jurisprudence without discussion of the principle underlying
it or full consideration of whether there was justification for imposing the rule as
an overriding principle, applicable equally to the civil and common law
jurisdictions; that English law would, in almost all cases, have reached the same
result in those cases where the Strasbourg Court has invoked the 'sole or decisive
rule'; that the 'sole or decisive rule' would create severe practical difficulties if
applied to English criminal procedure; and that, therefore, the sole or decisive
rule should not be applied in English law.
The Court thus faced a clear rejection of its 'sole or decisive' rule by the UK
Supreme Court. Of course, the Court could ignore such a rejection and maintain
its own interpretation and rule, but that approach would not be likely to be very
successful - if the UK courts were stubbornly to refuse to adopt the Court's case-
law, the result would be a stalemate.252 Instead, however, the Court appeared to
regard the judgment in Horncastle as an invitation to a dialogue between highest
courts. In its Grand Chamber judgment on the matter, the Court expressly
responded to the House of Lords' concerns and criticism.253 It acknowledged
that '[d]rawing on the judgment of the Supreme Court in Horncastle and Others,
the Government challenge the sole or decisive rule, or its application by the
251 R (Horncastle and Others) [2009] UKSC 14 (per Lord Phillips), para. 11.
252 Perhaps except for the rather unlikely situation in which the Committee of Ministers would
take political action towards the United Kingdom to force it to adopt the Court's
2" Al-Khawaja and Tahery v. UK, ECtHK. {GC} 15 December 2011, appV. nos. 26766(05 and
Chapter 2. The European Court of Human Rights and the national courts
Chamber in the present cases, on four principal grounds'.254 The Court then
extensively discussed all four grounds, thereby reaffirming the principles the
Chamber had previously defined and defending the 'sole or decisive' rule.255
Importantly, however, the Court concluded by adding a significant nuance: it
accepted that inflexible application might have unwarranted outcomes.256 It
acknowledged that the use of hearsay evidence as sole or decisive evidence
would not immediately violate the right to a fair trial if there are sufficient
counterbalancing factors and strong procedural guarantees that permit a fair
and proper assessment of the reliability of such evidence. It concluded that the
safeguards developed in the United Kingdom were, in principle, sufficiently
strong, even if it might hold differently in concrete cases.257
Treading very carefully, the Court thus entered into a well-articulated,
elaborately reasoned dialogue with the highest court in the UK. It directly
responded to the Supreme Court s criticism, it provided a clarification and a
better foundation for its own case-law, and it even conceded (to some extent) the
Supreme Court's approach by admitting that, in some situations, exceptions
should be allowed to the 'sole or decisive rule'. Indeed, the former President of
the Court, Sir Nicolas Bratza, expressly confirmed in his concurring opinion in
the case that the judgment should be read as a response to the Horncastle
The present case affords, to my mind, a good example of the judicial dialogue
between national courts and the European Court on the application of the
Convention to which Lord Phillips was referring. The Horncastle case was decided by
the Supreme Court after delivery of the judgment of the Chamber in the present case,
to which I was a party, and it was, in part, in order to enable the criticisms of that
judgment to be examined that the Panel of the Grand Chamber accepted the request
of the respondent Government to refer the case to the Grand Chamber.'258
Of course, it remains to be seen how the British courts will respond to the Grand
Chamber's judgment and whether they will accept the Court's slightly modified
reading of the 'sole or decisive rule'. If they do, the dialogue will be closed; but if
they do not, it is possible that a new case will reach the Court and it will have to
find a new response to the UK courts' arguments. The interplay or dialogue by
Idem, para. 129.
Idem, paras. 130-146.
Idem, para. 147.
The Court also applied the new standards to the facts of the cases of Al-Khawaja and Tahery;
thereby it found no violation of Article 6 in the case ofAl-Khawaja, but it did find a violation
in the case of Tahery - the requirement of sufficient counterbalancing factors and strong
procedural safeguards was not met in his case.
258 Al-Khawaja and Tahery v. UK, ECtHR (GC) 15 December 2011, appl. nos. 26766/05 and
22228/06, concurring opinion of Judge Bratza, para. 2.
Janneke Gerards
means of judgments can then easily continue until such time as one court
accepts the other's position.
6.2.3. Approval of national responses to the Court s judgments
In the case of hearsay evidence, the dialogue by means of judgments is one in
which the Court responded directly to criticism rendered by a national court. In
other cases, the dialogue is of a different nature. Here, the Court uses its
judgments to express its approval of the response a national highest court has
given to an earlier judgment of the Court.259 In this situation, the national court
seeks to comply with the Convention rather than stressing its disagreement with
the Court's approach. Perhaps this may seem surprising, but it appears that
engaging in a 'constructive dialogue' with the Court on the standards to be
applied by national courts may be a good way to influence the Court s case-law
as well as protect their own position.260 This can be illustrated by a series of
judgments against Germany on the publication of photographs of celebrities in
the tabloid press. The German courts had long held that publication of such
photos could be published, even if they disclosed the private life of public figures,
as Idhg as the celebrities were regarded as 'absolute Personen der Zeitgeschichte
(translated by the ECtHR as 'figures of contemporary society "par excellence").
The Court found very differently in its first judgment in the case, Von
Hannover.261 It held that the standards applied by the German courts offered too
much protection to the freedom of expression of the tabloid press, and too little
to the privacy interests of public persons. In the Court's view, a different standard
should be applied, based on the nature and general importance of the
information disclosed by the photos: if the aim of publishing pictures was only
to satisfy the readers' curiosity, the interest of freedom of expression could not
easily outweigh the privacy interests of the persons depicted, but it could be
different if the photos were part of a debate on a topic of general interest.
This judgment of the Court, which held an express rejection of a longstanding
interpretation by the German constitutional court, encountered fierce criticism
in Germany.262 Nevertheless, the highest German courts conceded to the Court's
This situation is similar to the 'second look' cases in constitutional dialogue: there, it may
happen that a court has found a violation of a fundamental right by legislation and has
ordered the legislature to amend the relevant law, but after amendment a new case may be
brought in which the legality of the amended legislation is again contested. The court then
has to decide if the amended legislation is compatible with the Convention. Arguably, the
review must then be more deferential than in 'first look' cases - see DIXON, supra n.245, at
See further on this STONE SWEET, supra n. 9, at p.1867.
ECtHR 24 June 2004, appl. no.59320/00.
Indeed, it has been said that the judgment is the main cause for the principled stance the
German Federal Constitutional Court took in the case of Gorgulu, in which it stressed that it
would normally readily comply with the Court's judgments, but in cases of clear conflict
Chapter 2. The European Court of Human Rights and the national courts
judgment accepting that their own standards should be replaced by the
Court's.263 One main question remained, however, which was whether the new
interpretation given by the national courts was really in line with the Court's
case-law. An opportunity for the Court to respond to the national response to its
judgment arose when a new case on the publication of photos ofcekbrities in
their private capacity reached the Court: Von Hannover (No. 2) v. Germany.264 In
its judgment on the case, the Grand Chamber of the Court made good use of the
occasion to explicitly analyse and accept the new German standards:
.125. The Court ... observes that the national courts explicitly took account of the
Court's relevant case-law. Whilst the Federal Court of Justice had changed its
approach following the Van Hannover judgment, the Federal Constitutional Court,
for its part, had not only confirmed that approach, but also undertaken a detailed
analysis of the Courts case-law in response to the applicants- complaints that the
Federal Court of Justice had disregarded the Convention and the Court's case-law.
126 In those circumstances and having regard to the margin of appreciation enjoyed
by the national courts when balancing competing interests, the Court concludes that
the latter have not failed to comply with their positive obligations under Article 8 of
the Convention. Accordingly, there has not been a violation of that provision.'
In this case, thus, the national highest courts responded to the Court's criticism
of their earlier case-law by modifying their standards to meet the Strasbourg
requirements In turn, the Court explicitly responded to this by evaluating and
finally accepting the new case-law. A similar approach is visible in a series of
other cases against Germany, related to preventive detention of dangerous
crimmals.2" Again, this could be seen as a form of dialogue by means of
between the Court's standards and the standards reflected in the German Constitution, the
latter would prevail (Order of the German Constitutional Court, BVerfG, 2 BvR 1481/04 of
14 October 2004, especially paras. 49-50); on this judgment, see also H.-J. PAPIER, .Execution
and^effects of the judgments of the European Court of Human Rights from the perspective
^ <?frm_an.nati°.?al.,coulrts'''27 Jfuma" ^'.?h(s Law Journal (2006) p. 1. See furthere.g.
&MA^TINICO^IS the European Convention Going to Be "Supreme"? A Comparative0-'
Constitutional Overview of ECHR and EU Law before National Courts', 23 European Journal
of International Law (2012), pp. 401-424, at p. 410, and B. RUDOLF, .Council"ofEurope7von
Hannover v. Germany; 4 International Journal of Constitutional Law (2006) pp. 533J-539"at
see the, iudsments °f the German High Court (BGH 6 March 2007, no. VI ZR 51/06.6) and
the Federal Constitutional Court (BVerfG 26 February 2008, nos. 1 BvR 1626/07 "mil BvR
ECtHR (GC) 7 February 2012, appl. nos. 40660/08 and 60641/08.
265 ^L!,hls.d.i?l°?ue' 1" particular M v- Germany, ECtHR 17 December 2009, appl. no.
mw'oi:Haidn v-Germany'EctHR " Ianuary 2°u' app1-no-6587/04; Kallweitv. G^many,
B.C,tHR.l^,Ianuary 20n' appl_n0'17792/07- m the latt" two cases, the Court express'P
welcomed the response by the German courts to its judgment in M. v. Germany: 'It notesTh'at
^.e.ral..^rts?fAppea,l',as.wellas a senate ofthe Federal court of Justice, on the contrary,
have considered it possible to interpret German law in accordance with the" Convention"
Janneke Gerards
6.2.4. Requirements for a successful dialogue by means of judgments
In the examples of dialogue by means of judgment discussed in sections 6.2.2
and 6.2.3, there is a relatively direct interaction between national (highest) courts
and the ECtHR on the interpretation and application of the Convention. This
kind of dialogue is very favourably received by the Court, as the interviews
conducted with a number of judges and registrars made clear. Dialogue by means
of judgments is regarded as a very good way to give shape to the notion of 'shared
responsibility' for guaranteeing the Convention rights. Indeed, one can easily
understand why this form of dialogue is attractive. The criticism and responses
voiced in the national case-law are framed in legal terms that are easy for the
Court to understand, and they are directed to concrete issues of Convention
interpretation and application. Speaking the same kind of language certainly
facilitates an effective dialogue.266 Moreover, political scientists have stressed
that domestic judiciaries are the most important domestic allies for the
implementation of the Court's rulings, since they apply European human rights
law to the domestic legal context and thereby provide a local resource for
individuals.267 For that reason, too, there is good cause for the Court to
collaborate with the national courts, and to regard them as co-equal partners,
rather than supervising and correcting them from a hierarchical position.268
Perhaps one would therefore expect such "dialogues' to be frequent and
visible. Nevertheless, such explicit examples as were given in sections 6.2.2 and
6.2.3 are relatively rare, and they seem to be limited to cases from Germany and
the United Kingdom. There may be other cases where the Court responds to
national concerns expressed in judgments, but such responses are far more
implicit, and it would require a sharp eye from the reader of the judgment to
discern that the Court is actually responding to a national judgment.269
and that the Government in the present proceedings agreed with that view. In the light of the
foregoing, the Court does not consider it necessary, at present, to indicate any specific or
general measures to the respondent State which are called for in the execution of this
judgment. It would, however, urge the national authorities, and in particular the courts, to
assume their responsibility for implementing and enforcing speedily the applicant's right to
liberty, a core right guaranteed by the Convention' (Kallweit, para. 83). See in more detail
C. MICHAELSEN, '"From Strasbourg, with Love" - Preventive Detention before the German
Federal Constitutional Court and the European Court of Human Rights', 12 Human Rights
Law Review (2012) pp. 148-167 and ANDENAS and BJORGE, supra n.27, pp. 30-36.
Cf. SLAUGHTER, supra n. 78, at p.125.
See e.g. C. HILLEBRECHT, 'Implementing International Human Rights Law at Home:
Domestic Politics and the European Court of Human Rights', Human Rights Review (2012),
DOI 10.1007/S12142.012.0227.1.
This element of relative co-equality is of great importance for a successful dialogue - see
further on this SLAUGHTER, supra n.78,at p.122; L.R. HELPER, "Forum Shopping for Human
Rights', 148 University of Pennsylvania Law Review (1999) pp. 285-400 at p. 349; AHDIEH,
supra n. 246,at p. 2088; TORRES PEREZ, supra n. 86,at p.123.
Nevertheless, many of the Court's judgments, in particular those in which it consciously
applies procedural review or a consensus-based interpretation, can be regarded as examples
Chapter 2. The European Court of Human Rights and the national courts
Nevertheless, even such -hidden, implicit dialogues can be very effective, .
as the result is to enhance the shared responsibility of the Court anZthe^adon^
.?Iaduiogue,by means °^udgme»ts to be effective, it is not necessary that
lnationaljudgment what is essential is that the national court's'express'
^^nflc!sm.aond.questions in such a way that the court ^ effectively
ab!ltorespond'2.70.Ifnational courts have great difficulty7n~fittmg7typic^
COTn!ionmterpretation into their own national law. Yet do not"sayTo"an/d'S
^lmay slmply not be clear to the court that there is ^ invitation to dialogue
!!m,i!arlly'.lf!lational.courts do not speak with one v°ice,~and"onehighuZurt
t^sJ°.accept^ courts interPrctation ^hile another' rejects'k,7may'^e
difficult for the Court to know where it should respond'to.WW th'e'exaZ^
g"lenm.sect,ions 6;2-2 and6-2-3_h^ i" common'is that they concern ,
expressed judgments by national highest courts, which either mad7k'vervd"ea/r
thlthere are difficulties related to a line of Strasbourg'caseTa^'or'th'a^Z
COThave adapted their case-law and are now askinS fo^pproval by''theC"our±t
^us, as the interviewees also stressed, if national courtsrwant to c'ont'rFbute
toAe process of giving shape to the Convention and'want'to engage Tnu^
proces.s.ofdialogue and shared resP°""bility for Convention apphcTtTon and"
interpretation, they would need to express themselves clearly and unequiv
:mcLtheywould need,to.offer Morale, weU-considered'7rgum"en^Z
disagreement or doubt. Having a constitutional court w7th,
for.rcviewing,national legislation and i"terpretation of"mtemaetionlalFtcreTuecss
malblhelpfulin:this.l'espect'but lt is possible to start a dialogueTvenm^ates0
w out.c&nstuutional rcview-orwithout a ""gle highest-couort.'Theprov^ol"n
d, well-reasoned questions and arguments is sufficient.
The respondents to the interviews confirmed that it would'be'de'sirable if
^urts.inother states..than the_united Kingdom and Germany were"to~make
bettTU.S_e,olthepossibmties offered ^ diaiogue by mean7o7 judgment'. Mao^
equal participation in the dialogue might help to prevent'a bias"m&'th7co'urt^
case-law towards the national law and traditions of the states "wherethe^
express their criticism_and complaints most eloquently.271 Especially'gTvenThe
res interpretata of the Court's judgments, an interpretation given ma c°ase'such
" ^ssss=^^;^^^s=br'te
" SE^itii^^S&s
particular the sources mentioned supra n. 256. ~ ---.- ..^.>., .u. ti.cac,
lt^mfsEhCoffl"RlftZ±t^nlo;ailegaImlesandprinciPles ma': SPrcad th""8h the
meaium or ECtHR judgments in which a response is given to these ru'Ies7particuTa'rfy"a7a
lanneke Gerards
as Al-Khawaja and Tahery, which is now well aligned to the British common law
approach to hearsay evidence, is also relevant to all other European states. Thus,
the response given by the Court to criticism in one state may have effects in all
46 others. If the Court is asked to respond to national criticism in this manner
by only one or two states, the effect might be that typical elements of their legal
systems are addressed more frequently and more explicitly than those of others,
and thereby have more effect on the Court's overall interpretation of the
Convention. Of course the Court can use strategies of procedural review and
judicial minimalism to avoid such effects, yet it is clear that its case-law might be
more balanced if it had to engage in dialogue with other states with different
constitutional and legal traditions.
6.2.5. Conclusion
Dialogue by means of judgments is an important mechanism for safeguarding
the Convention, expressing as it does the national courts' and the Court's shared
responsibility in this respect. If national courts criticise the Court's approach,
the Court can respond by modifying or re-establishing its case-law, and if
natfcnal courts are in doubt about the conformity with the Convention of a
certain line of case-law, they can ask the Court to deny or confirm their reading
of the Convention. By inviting such national criticism and by responding to it
openly and extensively, the Court may also find a way out of the conundrum of
having to respond to national criticism while needing to protect the Convention.
Simultaneously, by empowering the national courts to make use of this avenue of
judicial dialogue, states may create a counterbalance against the power of the
Court to interpret the Convention in an autonomous and evolutive fashion.
6.3.1. Exchange of information between courts
Many forms of dialogue are conceivable between the Court and national judges.
Interaction can, for example, be facilitated by comparative interpretation or
procedural review. Interestingly, moreover, there are several direct forms of
dialogue which can be helpful in relation to the shared responsibility for the
effective application of the Convention. In particular, the importance of
meetings and exchange of knowledge and experience between judges has been
emphasised in legal scholarship, as well as in the interviews conducted at the
result of res interpretata; see also SLAUGHTER, supra n. 78, at pp. 111-112. On the importance
of equal participation, see also TOKKES PEREZ, supra n. 86, at p.126.
Chapter 2. The European Court of Human Rights and the national courts
Court.272 It appears to be very useful for the Court to exchange views with judges
of national courts, since it thereby gains direct access to information on the
national legal situation, particular lines of case-law that are difficult to apply in
national law, and concerns about certain interpretations. It may not always be
able to respond directly to such concerns or such information in its judgments,
but the exchanges can help the Court know which case-law needs further
clarification or which cases should go to the Grand Chamber. The national
judges may also benefit from such exchanges of information. Of course, the
benefit is greatest if their concerns are translated into new interpretative
approaches by the Court. Equally valuable, however, is that direct information
can give them clarity about the underlying reasons for certain decisions, or the
way they could implement the Court's case-law in their own judgments. Such
informal contacts benefit an effective cross-fertilisation, as well as'increase the
embedding of the Court's case-law in national law.273 Nevertheless, such
exchanges of information can sometimes be counterproductive. If national
judges leave with the impression that their concerns have not really been heard,
or if the exchange remained superficial, such visits can be considered fruitless.274
Exchange visits between (highest) courts and the Court are not at present
organised systematically. Some national courts engage in regular exchange visits,
others (also) participate in associations or networks'of highest courts that do as
such have contact with the Court, while still other courts only rarely have
contact with the Court. Several interviewees at the Court stressed that the value
of these informal visits is such that it would be valuable to organise them on a
more regular basis. Indeed, it may also be beneficial because "(just as with the
dialogue by means of judgments) there is a risk of bias "in the Court's
interpretations towards those states whose judges frequently discuss Convention
interpretation with the Court, as compared to states whose judges hardly ever
visit the Court. For the Court itself, however, this is difficult to"organise'- the
possibihty of^regular scheduled^meetings has to be accommodated by, for
example, the Council of Europe.275
Some respondents in the interviews at the Court also stressed that it would
be advantageous to the 'shared responsibility' of protecting the Convention if
273 lL.^VT.E.R^Ut"'a n' 78' at_?' 103- seealso e;& BRATZA 2012. supra n. 79, at p. 27.
See SLAUGHTER, supra n. 78, at pp. 103 and 117; on the value of networks between national
{udge.s and mternational courts.see als° E. MAK, Judicial Decmon-Makingm'aGlobaUs'ed
v°rld:Jhe vwws andEXPeriet":es of Highest Court Judges in Five Western Countr,es'(0xford,
Hart 2013), ch. 3 section 2. " --..-...- ,-..."",
^ ^ t.he.!XPCTimces.ofnational judses Aronicled by MAK, supra n. 273, ch. 3 section 2.
OLCOUrse' ,there is the annual seminar 'Dialogue between judges', where presidents of
national highest courts and senior judicial officials visit the Court (on this, see <www.echr"co^
llhilmeeung is, an opportunity for contacts, but the exchange of7nfo'rmBat'ion
there is obvioudy not as deep and detailed as when a judicial delegation from one partteu'la'r
state visits the Court.
[anneke Gerards
there were not only interaction between the national courts and the Court, but
also between the various national courts inter se. If Dutch judges could discuss
Conventioii interpretation and implementation with Polish judges, for example,
or Russian judges with Austrian ones, it could result in an exchange between
equals of good practices and practical solutions. This could contribute to the
proper application of the Convention at the national level, or, eventually, in a
clear judicial invitation to the Court to dialogue by means of judgments. Indeed,
networks between judges already exist, but they do not specifically relate to
fundamental rights and they are usually limited in their geographical scope.276
The establishment of networks for judges with a special focus on Convention law
could be very valuable, but again, the Court is unable to provide this itself.
6.3.2. Advisory opinions
In the future the dialogue between the national courts and the Court could be
further facilitated by the introduction of a procedure for advisory opinions.
Based on the political agreement expressed in the Brighton Declaration of
2012,277 an optional protocol (Protocol No. 16) has been opened for signature
that Inakes it possible for national highest courts to refer a question of
interpretation or application of the Convention to the Court.278 Somewhat
similar to the Court of Justice of the EU in preliminary reference cases, the Court
may then provide a direct answer to such a question, which could then be used by
the national court in its own judgments. Thus, in a situation such as that of the
publication of photos of celebrities in the tabloid press, it would not be necessary
to wait for an individual case to be brought before the Court to ask it expressly or
implicitly for approval of a new standard or a new line ofcase-law.
This procedural mechanism would open a new avenue for judicial dialogue,
which could be very effective.279 In a reflection paper on the topic the Court
welcomed the introduction of the procedure for this reason.280 Nevertheless, it is
276 MAK, supra n. 273, ch. 3 section 2.
277 High Level Conference on the Future of the European Court of Human Rights Brighton
Declaration, 19-20 April 2012, para. 12d.
278 ETS No. 214. The idea of a preliminary reference or advisory opinions procedure was already
advanced by the Group of Wise Persons who advised on the future of the Court in 2006;see
Report of the Group of Wise Persons to the Committee of Ministers, 979bis Meeting,
15 November 2006, para. 78f. For the further history of the proposal, see the Draft CDDH
Report on the proposal to extend the Court's jurisdiction to give advisory opinions,
DH-GDR(2011) R8 Appendix VII, 9 November 2011.
27I) Cf. TULKENS, supra n. 13, at p. 10; J.-P. JACQUE, "Preliminary references to the European Court
of Human Rights', in How can we ensure greater involvement of national courts in the
Convention system?. Dialogue between judges (European Court of Human Rights, Council of
Europe 2012) pp. 17-23 at p. 20; see also the speech of ECtHR president Spielman to the
CDDH, 27 June 2013, #4439316.
280 ECtHR, Reflection paper on the proposal to extend the Court's advisory jurisdiction (2012)
Chapter 2. The European Court of Human Rights and the national courts
acknowledged that there may be disadvantages to such a formal and
institutionalised dialogue.281 Doubts have been expressed as to the efficiency of
the procedure (especially as compared to the current dialogue by means of
judgments),282 the legal and practical effects of advisory opinions, as well as the
impact of the new procedure on the Court's working methods.283 Moreover, the
same kind of issues arise as are presently visible in relation to dialogue by means
of judgments: it may be that some courts ask questions much more frequently
than others (particularly since the Protocol is optional), which may result in a
bias towards the legal systems of such states: their particular legal characteristics
may be taken into account much more explicitly and more frequently than those
of non-referring states. Thus, even if the advisory opinions may be promising in
terms of channelling and accommodating judicial dialogue, much is still needed
to shape the process into a smoothly operating mechanism.
Using all the mechanisms and instruments analysed in sections 4 and 5, the
Court often engages in judicial dialogue with national courts. It sometimes does
do so expressly by means of its judgments. It may respond to national criticism
by adapting, explaining or reconfirming its own interpretations of the
Convention, or by evaluating whether a national judicial standard (adopted in
response to the Court's case-law) is in line with the Convention. Other forms of
dialogue are more informal, such as exchange visits between national courts and
the Court or networks of national judges for the exchange of good practices. In
the future there will be a more formal mechanism for dialogue in the shape of
the advisory opinions procedure.
These forms of dialogue may be favourably considered as ways to effectively
protect the Convention rights in line with national legal traditions and national
legal systems. Thus, judicial dialogue is conducive to reducing the tension
between the pull and push factors inherent in the ECHR system and to fostering
shared responsibility between the Court and the states. Nevertheless, it has also
281 See e.g. LUBBE-WOLF, supra n. 78, at p. 13.
282 LUBBE-WOLF, supra n. 78, at p. 13.
283 For a review of the pros and cons of the procedure, see generally Draft CDDH Report on the
proposal to extend the Court's jurisdiction to give advisory opinions, DH-GDR(2011) R8
Appendix VII, 9 November 2011 and ECtHR, Reflection paper on the proposal to extend the
Court's advisory jurisdiction (2012) 03853038. See also K. DZEHTSARIOU, 'Interaction between
the European Court of Human Rights and member States: European consensus, advisory
opinions and the question of legitimacy', in S. FLOGAITIS, T. ZWART and ]. FRASER, eds.. The
European Court of Human Rights and its Discontents. Turning Criticism into Strength
(Cheltenham,^ EdwardElgar 2013) pp. 116-146 and N. O-MEARA,'.Reforming the Europe°an
Court of Human Rights through Dialogue? Progress on Protocols 15 and 16
ECHR-, UK Constitutional Law Slog, 31 May 2013, <>.
Janneke Gerards
been submitted in this section that judicial dialogue will only be successful if the
national courts express their views and concerns in an explicit manner,
underpinning them with sound arguments, and if the Court takes good care to
avoid bias in its own interpretations towards the states where the most eloquent
and understandable criticism is voiced.
The previous section dealt with the interaction between the Court and national
courts, and the way the Court can respond to criticism of its judgments voiced
by national judges. In recent years, however, the Court also has been confronted
with criticism by national politicians (members of Parliament, government
members) and criticism in the national media. In itself, this is nothing very new
- the Court has always been criticised. Perhaps it is even self-evident that there
will always be criticism of an 'outsider' such as the Court. It is, after all, an
international, remote judicial institution, lacking democratic legitimacy, which
has To decide on sensitive issues, and which aims to protect the rights of those
whom many members of society would prefer to be cast out (such as suspects of
crimes, members of minority groups who are discriminated against, persons
expressing shocking and distressing opinions). To some extent, therefore,
criticism is unavoidable. It is also important to note, moreover, that such
criticism has not thus far affected the overall acceptance of the Court and its
competence - the legitimacy of the Court and the authority of its judgments
have long remained unquestioned.
It therefore came as a surprise that by the end of the 2000s, in the Netherlands
and the United Kingdom some politicians, academics and media began to
question the very foundations of the system, as was explained in the introduction
to this book.284 The criticism of the late 2000s seems to be of a more fundamental,
deeper nature than criticism expressed in earlier times. Of course, this raises the
question of how the Court should respond to such criticism, which, after all, is
directed at its own work and position.
As was confirmed in the interviews, the recent criticism has had no direct
impact on the Court's case-law. The Court has always been aware of its delicate
relationship with the states, as witnessed by its use of consensus and meta-
teleological interpretation, its reliance on 'judicial minimalism' and its frequent
references to the primary responsibility of the states to protect the Convention.
Over the past few decades, relatively new approaches such as procedural review
and the 'in for a penny, in for a pound' approach have been added. These
For a recent discussion of the criticism in the UK and the Netherlands, see chapters 6 and 8 of
this book.
Chapter 2. The European Court of Human Rights and the national courts
adjudicative approaches bear witness to the Court's desire to encourage a 'shared
responsibility' approach to the protection of fundamental rights - U needs to
collaborate with national courts if it is to succeed in achieving its purpose of
safeguarding the Convention rights. These approaches have not really changed
since the criticism in the United Kingdom and the Netherlands came up. The
only tell-tale sign of the Court's sensitivity to the criticism is that it seems to
stress even more explicitly than before that a certain change of approach is a
response to national case-law, that a lack of European consensus demands a wide
margin of appreciation, or that the Court would need strong reasons' to strike a
different balance between conflicting interests than the national courts have
done. Moreover, it is easy to read judgments in cases such as Scoppola No. 3,
Lautsi and Animal Defenders International in the light of the criticism levelled at
earlier judgments, and to regard them as a response. But even if the signs in such
judgments seem obvious, there may many different explanations for them, and
they may even not reflect real changes at all. It may well be that it is mainly
perception and expectation that make such changes visible: if the court watcher
expects a change as a result of criticism, he can easily read in all judgments a
confirmation of this expectation, and vice versa. Indeed, the interviewees at the
Court all confirmed that there is no conscious, intentional effort by the Court to
change its approaches and methods in response to the recent criticism. The
respondents agree that it is hard to ignore the criticism, as it forms part of the
general context in which the Court has to decide its cases. Yet the Court always
aims to decide on the basis of the facts of the case and the reasonableness of an
interference, rather than on the basis of strategic and political arguments related
to its position vis-a-vis the states.
Thfr-cesponse by the Court to the criticism is really of a different nature. The
two former Court presidents have written papers for academic law journals to
explain the Court's work, to clarify the reasons behind its case-law and to rebut
some of the criticism levelled by politicians, academics and journalists. Various
judges and registrars have acted as ambassadors of the Court in speeches and
public lectures, in newspapers and in television interviews. On an official and
formal level, the Plenary Court has been involved in preparing the
intergovernmental conference on the Court's future, reflecting on the various
proposals made, inter alia, by the British government. Indeed, the interviewees
indicate that such relatively informal responses are the only ones that are fitting
for the Court. Moreover, various respondents stress that it is hardly possible to
respond differently. A court such as the ECtHR can respond well to national
judicial criticism, which is given in legal terms and relates directly to specific
interpretations and lines ofcase-law. The criticism offered by politicians and the
media in the debate referred to above is much more diffuse and lacks a clear
sense of direction. Moreover, it is difficult to respond to the criticism as it is
unbalanced: it comes from a limited number of states, while other states embrace
Janneke Gerards
the Court and even use the Court's judgments as leverage to effect legal and
constitutional change in their own legal systems.285 It would be rather awkward,
then, if the Court were to respond in any way other than by carrying on doing its
work and explaining the importance of the Convention system in extra-judicial
speeches and media efforts. It is simply hoped that the storm will blow over and
it is sufficiently clear to the people living in the 47 states of the Council of Europe
that there is great value in an effective European court that can correct national
governments if they do not sufficiently protect fundamental rights.
The aim of this report was to analyse the Court's case-law to examine the extent
to which the Court endeavours to influence national judicial decision making, to
estimate the degree to which it respects national sensitivities and traditions, and
to make visible how it responds to national criticism (either political or judicial).
In section 2 it was explained that the Court's function is threefold: it is there to
protect Convention rights in individual cases; to provide a minimum level of
protection; and to do so in a way that is complementary and subsidiary to the
protection offered by the national authorities. Taken together, these three
principles should help to guarantee fundamental rights to all individuals living in
Europe. In practice, however, it appears that there is a clear tension between the
desire to protect fundamental rights (the 'push factor') and the desire of the states
to do so as they think fit (the 'pull factor'). In giving shape to the Convention, the
Court has to find a balance between respecting national sovereignty and national
diversity on the one hand, and protecting Convention rights on the other.
Section 3 clarified that the Court increasingly undertakes its task of
guaranteeing Convention rights in close collaboration with the national courts.
The Court requires national courts to adopt and apply its interpretations and
adjudicative methods, even if they have been given in cases against other states.
Thus a situation of'shared responsibility' is created, whereby the national courts
are just as responsible for safeguarding the Convention as the Court is. This
results in a number of obligations on the national courts, such as the obligation
to adopt the Court's evolutive and autonomous interpretations. It is questionable,
however, if these obligations necessarily result in 'marionette' behaviour by the
national courts. It is clearly not the intention of the Court to achieve such a
situation. Instead, it aims to cooperate with the national courts as equal partners
See, for example, A. GARAPON, 'The limits to the evolutive interpretation of the Convention',
in What are the limits to the evolutive interpretation of the Convention?, Dialogue between
judges (European Court of Human Rights, Council of Europe, 2011) pp. 29-38, on the
changes that were brought about in French criminal procedure as a consequence of a number
of recent ECtHR judgments.
Chapter 2. The European Court of Human Rights and the national courts
in a shared project of protecting the Convention rights. This can be seen from
the fact that the Court often defers to the national authorities and in particular
to the national courts, as was explored in sections 4, 5 and 6.
Sections 4 and 5 provided an analysis of the different judicial techniques that
shape the current situation of'shared responsibility'. It has been shown how the
Court can employ the various techniques to negotiate between the need to
provide a sufficiently high minimum level of human rights protection and the
need to respect national diversity and national sovereignty. The Court often
employs these methods to encourage the national courts to accept their share of
the responsibility under the Convention. This is true in particular of procedural
review, judicial minimalism and the 'in for a penny, in for a pound' approach -
all of which help to make the national authorities, and national courts in
particular, responsible for the implementation of the Convention. Moreover, by
providing evolutive and autonomous interpretation, and lists of general criteria
to be applied by national courts, to be respected by national decision-makers, the
Court is able to guarantee a minimum level of protection. In combination, the
Court's development and use of interpretative principles confirm that, on the
one hand, the national courts are stimulated to adopt the Court's standards and
principles and act as 'Convention courts'. On the other hand, however, the
national courts are granted much latitude to apply these standards and principles
in the way they think is the most appropriate.
Section 6 dealt with the notion of judicial dialogue and its application in the
Convention context. It was explained that, especially in more recent years, the
Court has given elaborate and explicit responses in its own judgments to
criticism and concerns raised by national (highest) courts. Moreover, the Court
sometimes evaluates and approves the changes made by national courts in
response to the Court's own case-law. This 'dialogue by means of judgments' is
supplemented by various forms of informal dialogue and, in the future, it will be
further added to by the introduction of a system of advisory opinions. The
various forms of dialogue enhance collaboration between the national courts
and the Court and they contribute to the 'shared responsibility' for compliance
with the Convention.
Finally, section 7 addressed the Court's concrete response to the political and
media criticism of the past few years. It was explained that the criticism has had
no visible or measurable impact on the Court's argumentative approach and its
adjudicative methods. Responses are only visible in the extra-judicial sphere, viz.
in articles written and speeches given by judges and registrars, or in the position
papers written on proposals for change.
Based on all of this, it can be concluded that, on the one hand, the Court
places high demands on national judges. The Court asks national courts to apply
its case-law and even copy its argumentative approaches. This may be
problematic, especially where such interpretations are far-reaching, or where the
Janneke Gerards
Court's requirements conflict with national judicial competences. On the other
hand, the Court often defers to national law and national judgments. It avoids
giving deeply reasoned and excessively wide interpretations and argumentation,
allowing the national courts some leeway to adhere to their own views and legal
traditions. It applauds states for introducing procedural remedies that enable the
courts to take the Court's general principles into account in deciding individual
cases, and it actively responds to national judicial criticism and concerns.
In fact, therefore, the Court seems to regard the national (highest) courts as
national extensions, which can help it to implement the Convention and to
protect the Convention at a grassroots level. Indeed, it is logical that it would
take this view, as the national courts are, like itself, courts, which speak the same
language and are characterised by the same kind of legal reasoning. It is therefore
very interesting to see whether the national courts are able to meet the
expectations that are implicit in the Court's idea of shared responsibility, i.e. if
they are really able and willing to follow the Court's lead, or engage in dialogue
where needed. This is one of the central questions in the various national reports
presented in chapters 3-8. In those chapters, attention is both paid to the
national courts' competences to comply with the states' obligations under the
Comtntion and to implement the Court's case-law in their own judgments, and
to the national courts' willingness and preparedness to do so.
It is well known that the Court is at present struggling with its enormous backlog
and caseload. However, the difficulties that confront it are also more
fundamental in nature. It appears that there is increasing national criticism of its
judgments, which are sometimes considered to conflict with national interests
and sensitivities. It is often thought and said that the criticism of the ECtHR is
connected to the Court's extensive interpretations of the Convention, which are
the effect of the use of 'activist' interpretation methods such as evolutive
interpretation, autonomous interpretation and consensus interpretation, and of
the use of doctrines such as the positive obligations doctrine.
a. Do you agree that the scope of the Convention has greatly expanded over
recent decades?
b. If so, to what extent do you think the expansion is the effect of the use of
interpretative approaches and doctrines by the Court? Are other explanations
Chapter 2. The European Court of Human Rights and the national courts
c. Is the choice of evolutive interpretation a conscious one? i.e. if a case requires
a novel or more expansive interpretation of Convention rights, is this
expressly taken into consideration in the deliberations?
d. Do you think that, over the past decade, there has been a change in the
opinions and views within the Court on the use of evolutive an<Tdynamic
interpretation, and on the expansion of scope more generally (e.g. is there
more internal debate on the use of these methods, is there more criticism or
disagreement in concrete cases)? If so, how can that be explained?
e. Do you think the Court should decide primarily on the facts of the individual
case, or rather that it should elucidate, safeguard and develop the rules
instituted by the Convention'? What do you think is the general view in the
Court? Do you think choosing one perspective or the other makes a
difference in the way cases are decided and judgments are reasoned?
In recent years the Court's work has been criticised by certain national
politicians, national media and national scholars. The current and previous
presidents of the ECtHR have defended the Court against such criticism,286 but
others have spoken of a 'backlash crisis' or a 'legitimacy crisis' that threatens the
future effectiveness and authority of the Court.287 The'question that then arises
is if the criticism affects the Court's work, and if so, how. The next few questions
relate to this issue.
a. Do you think there really is an increase in the national criticism of the Court?
If so, do you think there is a difference in the tone or intensity of the criticism
compared to earlier times? Is the criticism now voiced by different countries
than before? When do you think the criticism started to intensify or change?
b. In your view, what are the main causes of criticism directed at the Court's
c. Does the Court have to take the criticism seriously, i.e. do you think it is
necessary to take action in response to the criticism?
d. Do you think there is a response in the form of changes in the Court's
argumentative approach? For example:
Increased use of non-substantive, rather procedural forms of review
(checking the quality of national decision making instead of substantive
justification review);
J.P. COSTA, On the Legitimacy of the European Court of Human Rights' ludgments',
7 European Constitutional Law Review (2011), pp. 173-182; BRATZA 2011, supra n. 79.'
L. HELPER, 'The Burdens and Benefits of Brighton', 1 ESIL Reflections (2012) (1); see also the
various contributions ^n T. ZWAR'I, S. FLOGAITIS and ). FRASER, eds., The European Court of
Human Rights and its Discontents: Turning Criticism into Strength (London, Edward Elgar 2013).
Janneke Gerards
Paying more explicit attention to national arguments; showing greater
understanding of national difficulties and national values;
Showing more deference, i.e. applying a wide margin of appreciation
more frequently;
Making more use of lists of'general principles derived from the Court's
case-law' to demonstrate that the judgments fit into a longer line ofcase-
law and is not really new;
Referring more often to other international instruments supporting the
Court's judgments;
Making fewer explicit references to evolutive and dynamic
Declaring more cases inadmissible ratione materiae because they do not
really concern a Convention right; etc.?
e. Do you think the Court should respond more explicitly to national criticism?
If yes, should it do so mainly by means of its judgments? What should be
changed in your opinion?
If yes, should it do so by other means, e.g. by such means as journal
* articles written by judges and registrars, by giving interviews and
lectures, etc.?
Much of the criticism of the Court currently appears to come from national
politicians and national media, rather than national courts. There are some
notorious examples, however, of national courts which have expressly held that
they will not accept judgments of the Court that clearly conflict with national
(constitutional) values. Examples are the UK Supreme Court in Horncastle and
the German Federal Constitutional Court in Gorgulii. An important question
that is central to this research project is how and to what extent national courts
apply the Convention notions and interpretative principles, as well as if and to
what extent they sometimes refuse to do so. The reverse side of this issue is just
as interesting: how does the Court respond to national judicial unwillingness to
implement the Court's interpretations?
a. What is your opinion of such principled refusals by national courts to comply
with the Court's interpretations?
b. Do you regard this type of principled resistance as a threat to the effective
implementation of the Convention, or as problematic for other reasons?
c. Does the Court make a conscious effort in the argumentation of its
judgments to facilitate national judicial application of its argumentative
Chapter 2. The European Court of Human Rights and the national courts
methods and interpretations? If so, what instruments does it mainly use to
make it easier for national courts to adopt and use ECtHR interpretations in
their own case-law?
In the context sketched above it is often said that there is a 'dialogue'
between the national court and the ECtHR: the national court gives a certain
interpretation to the Convention, the court is corrected by the ECtHR, the
national court accepts (or refuses to accept) this correction and gives a new
(or the same) interpretation, the ECtHR gives its views on the national
l^ter,pr!ta!!°^etc: _(cf' von Hannover Nos- 1 and 2; M. v. Germany and
Haidn/Kallweit; Al-Khawaja and Tahery; Hirst; and Scoppola No. 2).
d. What is your view of this type of dialogue? Is it valuable that it exists?
e. Are there any problems related to this 'dialogue'?
f. What kind of results do you think the Court's response to critical national
judgments produces?
g. Do you think the dialogue between national courts and the ECtHR can be
improved and, if so, how?
... 115 During a procedural review the Court looks at the decision-making process of the national authorities, rather than conducting a substantive proportionality review itself. 116 A similar approach could be introduced with regard to the best interests principle. Rather than making its own assessment of what would be in the best interests of the child in each given case, the Court leaves this to the national authorities and subsequently verifi es whether due attention was given to these interests. ...
European Yearbook on Human Rights 2018 - by Christian Strohal October 2018
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El Sistema africano de Protección de los Derechos Humanos y de los Pueblos tiene origen en la Carta de Banjul de 1981 y sus dos principales órganos son La Comisión Africana de los Derechos Humanos y de los Pueblos (ACoHR) y la Corte Africana de los Derechos Humanos y de los Pueblos (ACHR). El presente capítulo se divide en dos grandes secciones; en la primera, se aborda la actividad de la ACoHR; y en la segunda, se aborda la actividad de la ACHR. En ambos se estudia la actividad judicial y cuasi-judicial del sistema desde la puesta en funcionamiento de estos dos órganos. Para ello, se aborda su establecimiento, naturaleza, alcance, ámbito de jurisdicción, presupuesto, el volumen y tipo de actividades (cuasi) judiciales adelantadas, el promedio de tiempo que tarda una aplicación/solicitud en ser resuelta y el seguimiento y ejecución de sus decisiones.
Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found a Mississippi jury trial to have been "the antithesis of due process." Much of the interaction of courts across national borders-including the citation of foreign legal authority, transnational coordination of complex litigation, and the enforcement of foreign judgments-has been analyzed through the metaphor of "dialogue." As suggested by the Loewen case, however, there is a growing pattern of interaction between international tribunals and national courts for which dialogue is an ill-suited analogy. Contrary to conventional expectations of incapacity and restraint in international adjudication, recent interactions between international tribunals and domestic courts incorporate a significant dimension of "review" in both a literal and a figurative sense. Although such review is not appellate in nature, it shares with appellate review some potential to effectuate its mandate without the consent of the court subject to review. This dimension of "power" further distinguishes emerging cases of international review from transnational dialogue. Standing between the hierarchy of appellate review and the comity of judicial dialogue, Loewen and similar occasions for international engagement with national courts represent a distinct pattern of judicial interaction, one I develop and detail as "dialectical review."
The doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine's origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or 'reverse' margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?
The margin of appreciation doctrine has become a fundamental part of the jurisprudence of the European Court of Human Rights. It has played a central role in most of the cases decided by that Court, including many of its most significant and controversial, and until recently has been the subject of remarkably little analysis. However, there has been a spate of interest in the doctrine in the last year or so. ¹ Most of this debate has concerned the details of how the margin of appreciation operates in the context of particular articles of the European Convention on Human Rights. This article's purpose is to look at the wider picture. After an outline of the essential characteristics of the doctrine, I will examine the nature of the margin and its role in adjudication. I will suggest that there are logical flaws in the margin as currently conceived, and that these undermine the quality and coherence of the Court's judgments.