Enlargement of the Council of Europe and Constitutionalization of the European Court of Human Rights

Enlargement of the Council of Europe and Constitutionalization of the European Court of Human Rights

1. Introduction: a European Constitutional Court of Human Rights?

It has recently become fashionable to claim that the European Court of Human Rights (ECtHR) is becoming a sort of ‘constitutional court’ for Europe as far as human rights are concerned—at least for that overwhelming part of the continent which forms part of the Council of Europe (CoE) (that is, all European states with the exception of Belarus). As two eminent students of the ECtHR, Alec Stone Sweet and Helen Keller assert, ‘the Convention and the Court perform functions that are comparable to those performed by national constitutions and national constitutional courts in Europe’.1 This is a bold claim; however, it is not unusual in the literature on the European Convention on Human Rights (ECHR). A leading British expert on Strasbourg law, Steven Greer, has been using the ‘constitutional’ framework to discuss the Convention system for some time.2 No lesser figure than ex-President of the Strasbourg Court (the position he held until 2007), Professor Luzius Wildhaber, has been fond of discussing the Court in constitutional terms, in his several publications and public speeches.3 Further, the ECtHR, as the guardian of the Convention, has indirectly placed itself in the position of a constitutional tribunal by dubbing the Convention a constitutional document.4

Whether these claims about ‘constitutionalization’ of the ECtHR are plausible, and what they really mean, will be considered later in this chapter. Before considering this issue, it is necessary to consider another recent development in the Convention system: the enlargement of the Convention’s constituency to the East. Before the fall of Communism, the CoE was an almost exclusively West European institution of twenty-three Member States. Now it counts forty-seven states, including all post-Communist European states with the exception of Belarus.

The central concern of this chapter is whether there is a connection between these two trends: this question will be answered in the affirmative. The way in which the enlargement of the CoE was the trigger for a constitutionalization of the system, and how constitutionalization was the institution’s response to the enlargement will be shown. Surprisingly, neither in the growing literature on the constitutionalization of the system nor in the writings about the enlargement of the CoE (with most authors agreeing that the eastward enlargement was of fundamental importance to the system’s changes) is the connection made between these phenomena.

At first glance, it may seem that the accession of new members to the ECHR system indicates ‘de-constitutionalization’. After all, the enlargement of the CoE has resulted in a significant increase of diversity and heterogeneity within the CoE’s constituency. In contrast to the beginnings of the CoE as a club of largely like-minded West European countries, with many shared legal, political, and cultural traditions (as it was with fourteen members at the point of the original signing of the Treaty, or even at twenty-three at the beginning of the 1990s), the CoE of forty-seven now displays an unprecedented and formidable diversity. Indeed, the differences between, say, Sweden and Georgia or Ireland and Latvia seem to be significantly greater than those between Sweden and Greece or Ireland and Portugal. The constitutionalism of the system seems to presuppose a degree of homogeneity as regards the constituency of the constitutional polity. There needs to be more than a modicum of similarity in approaches to human rights within the space covered by a single constitution and regulated by a single constitutional court. Consider the ECtHR’s concept of ‘margin of appreciation’ and the potential problems caused by heterogeneity. The established doctrine of the Strasbourg Court requires a degree of deference to the Member State summoned before the Court in circumstances where there is no consensus on a particular right recognized by the Convention. On the contrary, if consensus may be discerned, no margin of appreciation is acceptable and the Court does not hesitate to override the offending Member State’s practice. Logically, it would follow that the massive enlargement of the CoE would result in the lowering of the probability of finding an intra-CoE consensus and thus in an increase of the scope of the margin of appreciation. Clearly, increased resort to the margin of appreciation contradicts the main function of a constitutional court, which is to override any legislative or executive decision contradicting the Court’s own interpretation of constitutional rights. So, even before looking at the empirical evidence, one should be excused for having a strong suspicion against the enlargement–constitutionalization nexus.

However, the main constitutional implication of the enlargement which would support an opposite conclusion is the surge of cases brought before the ECtHR concerning basic, severe, and egregious violations of human rights linked to defects in legal systems (rather than individual aberrations in the enforcement of law). This is largely attributable to the increased diversity of CoE members. This prompted an important change in the Court’s position vis-à-vis Member States, and therefore encouraged the evolution of the entire system. In the early years of the functioning of the ECHR system, the Commission (the predecessor of the ECtHR) was hardly ever forced to consider issues involving serious breaches of human rights. There is indeed a certain benign paradox about the origins and the early years of the ECHR system: the very setting up of the ECHR system was motivated by the desire to prevent the recurrence of extreme state violence and blatant disregard for the most basic individual human rights. This is demonstrated by the emphasis on the minimum standards for the protection of rights enshrined in the Convention. Yet, for the first forty years or so, the Court (and the Commission) rarely had to grapple with such matters. Instead, it operated very much at the margins of the human rights problématique, establishing basic protections which were admittedly exciting for academic lawyers but in practice did not affect important policy and legal choices adopted within national systems. There was simply no reason for the Court to take up this role in the community of like-minded West European liberal democracies (with Turkey as the only distant relative), when the gates to the club were so firmly closed to the undemocratic regimes of Central and Eastern Europe.

But the accession of the Central and Eastern European (CEE) states after the collapse of Communism radically transformed this situation. The cases brought before the Court with the accession of the CEE states were of great significance, both in terms of the severity of rights violations and the systemic nature of the challenged deficiencies. This had the effect of reinforcing the constitutional role of the Court. The Court ceased being a ‘fine-tuner’ of national legal systems, and was compelled instead to adopt a role of policing national systems which suffered important systemic deficiencies (relative to CoE standards), and in which serious rights violations occurred. The evolution of the Court’s role from a fine-tuner to that of a scrutinizer of flawed legal and political systems is illustrated by the emergence of so-called ‘pilot judgments’, that is, judgments finding systemic defects and rights violations resulting in orders for the offending state to take far-reaching steps to redress the breach.

It is indeed no coincidence that almost all fully-fledged pilot judgments so far have originated from CEE. These are discussed in greater detail in parts 4 to 6 of this chapter. However, first, an overview of the ‘ECHR system’ will be provided, and the reasons for and consequences of the fundamental transition it underwent in the 1990s as a result of the accession of CEE states (part 2) are elaborated. In part 3, the contrasting approaches to the supremacy of the ECHR law over the national legal systems in the West and in the East are explained. It will be suggested that the various factors explaining the relative resistance to the constitutionalization of the ECHR system in the West, do not occur in the states undergoing the post-Communist transition. Furthermore, constitutional courts in CEE states play a particular role in the constitutionalization process of the ECtHR, by engaging with the Court. Finally, the issue of constitutionalization will be dealt with specifically, suggesting standards by which to assess whether the European system is indeed undergoing such a process: whether the Convention has become a constitution, and the ECtHR a constitutional court (part 7). To conclude, there is an assessment of the challenges lying ahead—both risks and opportunities—triggered by the enlargement of the Strasbourg system.

2. The ECHR system in transition

The ECHR system has been described, with justice, as ‘the most effective human rights regime in the world’.5 In comparison with other regional and international frameworks of human rights protection, as well as with the relatively modest aspirations which underpinned the birth of this system, it is nothing short of impressive. It is based on an ambitious charter, described by some as ‘a kind of constitutional document for a united Europe’.6 It is backed up by a political mechanism via the Committee of Ministers and the Parliamentary Assembly, which are tasked with various monitoring and supervisory functions related to the enforcement of rights. It is growing both in its formal textual scope (through successive Protocols) and also in the meaning and scope of the rights proclaimed through its interpretation by the ECtHR. The ECtHR, as the mouthpiece of the charter, displays features of a genuinely independent supranational tribunal. Its judges are recruited in a way which limits the control that Member States have over the selection process. While on the bench, the judges benefit from guarantees providing a real independence from pressure from Member State governments. Generally speaking, the Court enjoys a high degree of prestige and support from national judicial institutions and the political branches of the CoE, as well as legal academia. Moreover, the Court has successfully staked its claim as the final and authoritative interpreter of the Convention (saying that it is ‘empowered to give the final ruling’ on whether a state’s interference with a protected right is consistent with the European Convention),7 thus equating the application of the Convention with that of its case law. As a judge of the Court asserted, stating no doubt a broad consensus among the judges: ‘The process of application of the Convention has been, to a considerable extent, transformed into the process of application of the case law of the Strasbourg Court.’8

The decisions of the ECtHR are formally binding on Member States who are deemed to have violated the Convention and, through growingly accepted custom, possess de facto (if not de jure) authority of an erga omnes nature (at least as far as the interpretive value of its judgments is concerned). The Court has an assured constituency, a sort of ‘captive audience’: all European states have a strong incentive to join the CoE (both for the prestige value and also as an indispensable condition for eventual membership of the EU), and the acceptance of the compulsory jurisdiction of the Court is now a condition of membership of the CoE. The effectiveness of the Court’s judgments is guaranteed by a number of interconnected devices, such as the supervisory role of the Committee of Ministers, the general principle of the supremacy of the Convention over the national law of Member States, and Article 59 of the Convention, according to which the judgments of the Court are binding on states party to a dispute brought before the Court. In fact, the Court’s rulings have affected the shape of domestic laws of Member States in more general terms: the reach of decisions has extended beyond the determination of a specific remedy to a particular victim for a breach, towards effecting legislative change, affecting governmental practice and judicial decisions throughout the CoE constituency. As for the actual level of compliance of states with the Court’s rulings, it has been overall very high, and to such an extent that the judgments have been described as being ‘as effective as those of any domestic court’.9

This is not to say that the ECHR system is without faults and weaknesses. Each of the points made above should be carefully qualified: the Convention itself—in its main bulk—reflects the human rights approach prevailing almost sixty years ago, and hence is in many ways anachronistic. The incremental way of updating it, through Protocols, has not resulted in a comprehensive and modern document, as compared with, for instance, the EU Charter of Fundamental Rights. Among many rights which are present in the Charter but not in the Convention are the right to engage in work, to asylum, to protection of data, to equality before the law, to conduct a business, and the rights of the child, as well as many socio-economic rights, including those similar to the rights contained in the European Social Charter. The Court itself, in its procedures and modes of operation, is closer to a more traditional international instrument than a supranational judicial body, such as the European Court of Justice (ECJ). The binding role of its judgments upon the national constitutional (and other) courts is subject to doubts and questioning and, occasionally, an outright rejection. In Germany, for instance, the (in)famous Görgülü decision of the Federal Constitutional Court10 set forth clear limits as to domestic courts’ duty of loyalty to the European Court, by stating that while domestic courts should take into account Strasbourg case law when interpreting domestic law, this must not violate the ‘competence order’ and ‘substantive constitutional law’ of Germany. As observed by a commentator, this judgment ‘keeps the door open for a respectful dissent’.11

Moreover, the status of the Convention in Member States is not uniform: in some states, it is considered to carry a constitutional weight (for example in Austria), while in others it is less than constitutional but more than statutory (for example in Spain), and in others still, it is of a merely statutory value (for example in Germany)—with the consequence that the Convention and the ECtHR case law formally do not constitute an independent parameter of review of constitutionality of laws by a national constitution court. The same can be said about the status of the Court’s judgments in domestic legal systems: some national courts are happy to apply the law of the Convention, especially where it has been incorporated into national law, without at the same time necessarily committing themselves to following the interpretation of the Convention set by the European Court. As noted by Nico Krisch in his study of the position of Austrian, Spanish, and French highest courts towards Strasbourg case law, they ‘assert a power to decide on the limits of the authority of the ECtHR’.12 The judgments of the Court are occasionally ignored and some national bodies—including constitutional courts—simply refuse to follow them. In fact, while states have a strong incentive to join the CoE and consequently the ECHR system (as mentioned, for its prestige value and as a prerequisite for membership of the EU), once they are in they have little incentive to comply with the norms of the ECHR. In contrast to the EU or the NATO systems, in which, if a member reneges on its duties, other members have strong reasons to punish the offender, the benefits of collective action of the CoE are neither economic (as in the EU) or military (as in NATO), but rather purely moral, and therefore non-compliance by one member does not adversely affect other members in any direct way. So why should they care about non-compliance?

The Court itself has often been accused of displaying undue deference to Member States—by its use of the margin of appreciation doctrine—and this has sometimes been considered as nothing less than an abdication by the Court of its role as an authoritative standard-setter in Europe. As one scholar suggested, the margin of appreciation ‘seems to undermine the notion of universality that is a foundation of human rights theory’.13 In addition, resort to this doctrine is often perceived as arbitrary and erratic. As it was noted, ‘it remains difficult to foretell whether in any given case the margin will be wide or narrow’.14 Structurally, the Court is beset by numerous weaknesses which impede both its effectiveness and also its intellectual–legal gravitas. It is under-staffed and insufficiently funded, with judges complaining about inadequate secretarial and research facilities. The rules of operation themselves—including those concerning linguistic diversity—often render the effective consideration of a case a nightmare, and most importantly of all, the lack of power of the Court to control its own docket (except for a merely formal admissibility test) has prevented effective case management. The backlog is such that the delay between application and judgment on the merits is over five years.

So the picture is far from perfect. And yet, there is no other supra- or international human rights system in the world which comes close to the weight, scope, and effectiveness of the system built around the European Convention. This is all the more impressive given that the original intentions of the founders were rather modest. The aspirations underlying the Convention and the institutional system built around it were a response to the lessons of the atrocities of the Second World War and the Stalinist rule imposed on the Eastern part of the European continent. Its past-oriented motivation (the lessons of the Second World War) accounted for a focus on the most basic conditions of human life and liberty, best expressed in Articles 2 to 7 ECHR. These articles concern the most fundamental violations of human rights, recognizing that they should command instant and unconditional outrage from all people, regardless of their cultural and political traditions. In turn, its present- and future-oriented purpose—related to the Cold War context of the newly divided Europe and the confrontation with ruthless Stalinist authoritarianism, prompted a concern with fundamental political and civil rights and liberties, articulated in Articles 8 to 11 ECHR. Thus, the Convention and the Convention system were not, initially, aimed at perfecting the finer points of articulation of rights at the peripheral spheres of their meanings over which many people may reasonably disagree, but rather to establish and enforce a consensus at the most basic, elementary level.

Fortunately, in the first decades of its life the system scarcely ever had to deal with the issues for which it was initially set up. Due to the composition of the CoE, and the legal and political conditions prevailing in Western Europe (apart from the dictatorial regimes of countries such as Spain and Portugal), the Court was under-utilized in these early years, as truly drastic violations of rights did not occur. In any event, in the beginning, the institutional and procedural scheme effectively prevented any judicial activism. Individual access to the Court was rendered mandatory for CoE Member States only in 1998. As a consequence, there were only a small number of decisions handed down by the Court, and they were hardly of a fundamental character. The Court settled on the role of a legal fine-tuner, acting at the boundaries of rights, through setting up subtle tests of proportionality to examine restrictions aimed at legitimate ends, establishing the tests of, for example, access to personal information contained in medical files,15 determining the scope of the duties of authorities to consult trade unions in order to give effect to the right of freedom of association,16 or the status of ‘illegitimate children’.17 With time, however, the Court moved away from the self-restraint that would have been necessary if interpretation had been guided by an analysis of the original intentions. The Court has declared that the Convention ‘must be interpreted in the light of present day conditions’, rather than remain static,18 and considered, moreover, that the limitations of the rights authorized in the Convention should be narrowly construed (thus, by implication, with a small degree of deference to democratically enacted legislative limitations).19 In addition, the doctrinal vocabulary of the Court was enhanced by the ‘principle of effectiveness’, which requires that the Convention should be interpreted so as to ‘make its safeguards practical and effective’.20 In reality, this has led the Court to expand the protections of rights to a number of areas, which has resulted in the Court departing from the original purpose of the Convention, that is, setting a basic level of protection to be guaranteed by all Member States, and instead it has enthusiastically embarked on the more ambitious task of determining aspirational standards of human rights protection, particularly by applying proportionality tests in its interpretation of Articles 8 to 11 ECHR.

However, it was the accession of a large number of newly democratized states emerging from Communist authoritarianism that radically transformed the role of the Court. (To be sure, there had been earlier accessions of newly democratized states, including that of Portugal in 1976 and Spain in 1977, and the return of Greece to the CoE in 1974, after the restoration of democracy in that country. The role of the ECHR system in effecting consolidation of democracy and human rights in those post-authoritarian states should not be underestimated. However, the overall impact of these developments was less significant, relative to the accession of CEE states.) Indeed, the institutional design underwent fundamental changes in anticipation of enlargement to the East. The most radical changes were brought about by Protocol No 11 which entered into force in 1998: it abolished the Commission of Human Rights and centralized the administrative authority to process claims in a new permanent court. The most important consequence of these changes was the mandatory acceptance of individual applications and of the compulsory jurisdiction of the Court for all Member States of the CoE. In addition, Protocol No 11 set up a limited ‘appellate’ procedure from any seven-member chamber to a Grand Chamber of seventeen judges, at the request of one of the parties.

Overall, it is clear that the impending enlargement was a powerful agenda-setter to transform the Court. More importantly, the profile of the cases which came before the Court after the enlargement changed considerably. The main concerns of the citizens who chose to ‘go to Strasbourg’ as a result of the failure of domestic human rights protection, were no longer at the fringes of the rights enshrined in the Convention, requiring judges to balance competing values according to a subtle proportionality test. Rather, the complaints struck at the very core of the system, requiring an assessment of the minimum standards of protection of fundamental rights. As one scholar observed: ‘The Court ceases to be a secondary guarantor of human rights and instead finds itself in a more crucial—and exposed—front-line position.’21 The somewhat paradoxical consequence of the fundamental change in the composition of the CoE, as compared to its 1950 origins, was a return to the original intentions of the founders regarding the role of the institutional system of the Convention, that is, to police the enforcement of basic rights by providing minimum safeguards.

It is therefore not surprising that the arrival of new Member States, with significantly different traditions, cultures and approaches, and the accompanying influx of cases dealing with a more basic level of rights violation than before, raised concerns as to a probable lowering of standards. A number of observers, especially in the United Kingdom, expressly linked this prospect with the planned arrival of judges on the bench, who would lack sufficient democratic and rights-oriented credentials. Lord Browne-Wilkinson, for example, warned in 1997 against a strict observance of the Court’s case law:

I have found the jurisprudence of the European Court of Human Rights excellent, but a major change is taking place. We are now seeing a wider range of judges adjudicating such matters, a number of them drawn from jurisdictions 10 years ago not famous for their observance of human rights. It might be dangerous to tie ourselves to that.22

And another prominent British lawyer lamented, in a somewhat condescending manner: ‘The point, unfortunate but inescapable, is that the decisions of a court with this enlarged membership [from CEE states] are unlikely to win greater respect in this country for the principles embodied in the Convention.’23 At the same time, in some British circles, the concern was raised that the new judges recruited from CEE states would be too ‘anti-establishment’, a position deemed to increase ‘what was perceived as an unacceptable narrowing of the national margin of appreciation in the Court’s decisions’.24 Some suggested that this would not necessarily result in an overall lowering of the standards, but rather in the creation of varied standards of protection. Alec Stone Sweet and Helen Keller thus wonder: ‘In the context of enlargement, can the Court maintain consistent standards of rights protection, or is the emergence of a two-track Europe inevitable?’25

Apart from concerns about the lowering of standards and the creation of a two-track system, the prospect of enlargement also raised legitimate fears about the effectiveness of the system. Indeed, this effectiveness, as with any adjudication model based on traditional international-law mechanisms, has been tied to the political will of Member States. The main challenge was thus to develop normative standards whose effectiveness would not rely on the express consent of the concerned states, though at the same time, could be supported by sufficient political will. The relative homogeneity of the Member States was a crucial factor in the success of this delicate endeavour. As Judge Rudolf Bernhardt of the European Court observed: ‘The main reason for the effectiveness of the European Convention and the Court is the considerable measure of homogeneity among European states. [T]here is a feeling among the Member States that there exists a common European standard and that this standard should be further developed.’26 Without such homogeneity, the search for a ‘common European standard’ seems doomed to failure and the likelihood of effectiveness very low.

The concerns about the lowering of the standards were partly triggered by a high degree of leniency in exercising ‘conditionality’ in the admission process. To a certain extent (and here I am drawing a deliberately sharp distinction for the sake of comparison), CoE conditionality was the reverse of that applied for accession to the EU. The latter—as will be discussed in detail in Chapter 4—operated on the basis of a full incorporation of the acquis communautaire as well as a comprehensive fulfilment of all the other conditions of membership (in particular, of the so-called political conditionality codified in the ‘Copenhagen conditions’). This conditionality was driven by the awareness that once a state has acceded to the EU, there are scant means of disciplining its members, especially in the areas of political democracy and respect for human rights. In contrast, in the case of the CoE, the less-than-ready applicants were let in on the basis of a principle that it is better to have a troublesome country in than out. Only then would the process of bringing a member up to the requisite standards commence, through political pressure exercised by the Committee of Ministers and through judicial means operated by the Court. The admission therefore amounted less to the certification that a state is a full rights-respecting democracy and more to an incentive to carry out the necessary reforms, in the hope that the state would catch up with European standards when effectively subject to the various supervisory, monitoring, and judicial mechanisms within the CoE. Some experts even referred to the ‘therapeutic’ function of the accession27 or to the evolution of the CoE from a ‘club of democracies’ into a ‘training centre’.28

This process resulted in a number of clearly controversial admissions. The set of political conditions for admission was articulated as ‘presuppos[ing] that the applicant country has brought its institutions and legal system into line with the basic principles of democracy, the rule of law and respect for human rights’, including ‘Guaranteed freedom of expression and notably of the media, protection of national minorities and observance of the principles of international law.’29 Few of the CEE applicants admitted in the early 1990s could boast such a record. It was hardly the case of Russia when it applied for membership in 1992, and when it was eventually invited to join the CoE in 1996, or with Romania in 1993, or with Croatia in 1996. Whether the therapeutic theory has been validated and verified by an improvement in the behaviour of such states, is a matter of controversy. The dominant view is that, overall, it was a success, though there are also strong voices arguing the contrary, including, in particular, Peter Leuprecht, a long-standing high official of the CoE. According to him, this policy of lowering the standards for admission of CEE states has been ‘incoherent and unprincipled’.30 He argues that on the whole it has harmed the Council, as it has not brought about any visible improvements in the Member States concerned, while devaluing the ‘certificate’ of democracy which membership in the CoE traditionally conferred upon its Member States. In the words of another observer, ‘given that perhaps the most attractive prize in the gift of the Council of Europe is membership itself, conceding it at an early stage in a process of democratic transition risks legitimating an inherently unsatisfactory state of affairs’.31 It has been noted, moreover, that the strongest leverage the organization has on its applicants/members is at the pre-admission stage, and not exercising it amounts to a huge political waste of resources and opportunities; in consequence ‘The West may have wasted leverage by hastily offering membership in the Council of Europe.’32

Whether Leuprecht and other critics of the policy are right or not is something that cannot be pursued here. What matters for my argument is that this perception of a lowering of the standards applied in the CoE has multiple implications when assessing the role of the ECtHR as a central pillar in the CoE system. First, this perception is linked with the dramatic expansion of the subject-matter of the caseload ‘downwards’—towards the most rudimentary and basic violations of rights. Secondly, it brought into the range of ‘European’ standards a number of countries with currently backward patterns of legal articulation and protection of rights—thus making the search for consensus much more difficult.

3. Contrasting approaches to ‘Strasbourg’: East and West

The general thesis of this chapter is that, largely as a result of the eastward enlargement of the CoE, we have witnessed a general transformation of the ECtHR, from the role of a ‘fine-tuner’, oriented mainly at the dispensation of individual justice and operating largely at the fringes of the rights discourse, to a much more central role, that of an arbiter called upon to act when fundamental breaches are alleged and setting up some general legal principles which are meant to influence and control changes in domestic legislation, in the case law of constitutional courts, etc. This shapes not only CEE Member States but also the entire CoE community of democratic European states. And yet it is not what many of the original founders hoped for, and not something that they would have necessarily applauded. The original vision for the ECHR system was different. As one commentator aptly put it, the French and British drafters of the Convention ‘comfortably assume[ed] that the ECHR was merely a Europeanization of their own national practices of respectively libertés publiques and civil rights’.33 The perceived activism of the Court, enhanced by the arrival of allegedly ‘anti-establishment’ judges from Central and Eastern Europe, was observed with concern in the United Kingdom where a possible narrowing of the margin of appreciation was feared.34 So while the enlargement set the stage for an important evolution of the Court itself, the effects were not necessarily welcomed by everyone in the club, as already indicated in the previous section of this chapter.

The transformation of the nature of the decisions themselves, with the growth of cases dealing with more serious violations and therefore requiring more ‘systemic’ solutions, helped to dispel the traditional view according to which the role of the Court is limited to repairing malfunctions in the administration of the law, rather than deciding issues of law itself. This traditional view, never particularly convincing, was definitely put to rest most spectacularly by the pilot judgments which will be discussed later on in this chapter, but also more generally by all those judgments which were intended to lead—and did eventually lead—to legislative changes in the Member States concerned, and through a more precedential and generalized value of the Court’s judgments, in fact, rendered them valid erga omnes. This law-judging function of the Court renders it more obviously constitutional than when the fiction of its role as a sort of super-appellate European court of last instance tasked with finding violations in individual judicial and administrative decisions in the Member States was maintained.

But the constitutional turn of the ECtHR has not encountered universal support in the Western part of the Continent. In an already-mentioned study, Nico Krisch put together compelling evidence of a certain resistance towards the authority of the ECtHR by several West European countries, notably Spain, France, Germany, and Austria. As Krisch concluded, ‘domestic courts [in these countries] insist on the ultimate supremacy of their own legal order over European human rights law, and they have thus created a zone of discretion in deciding whether or not to respect a judgment of the ECtHR’.35 The reasons for this ‘insistence’, in my view, are not hard to understand.

First, the founding members36 of the CoE may feel a sort of ‘ownership’ of the ECHR framework. As mentioned earlier, originally the system was far from having the supranational and quasi-constitutional character it now displays. At the foundation stage, the states considered and rejected more ambitious supranational schemes and embarked upon a classical international design, giving primacy to diplomatic over the directly applicable judicial measures. For example, in the case of France, this corresponded to its general mistrust of a supranational control in the arena of ‘public liberties’ and its general preference for diplomatic rather than supranational measures in the field of international law. The British approach was similar. More generally, Mikael Rask Madsen observes that ‘the post-war universalization and Europeanization of human rights … was far from free from conventional strategies of safeguarding national sovereignty and interests’.37 So the recent constitutional tendencies may be seen as a departure from, or worse, a betrayal of, the design to which West European democracies agreed in 1950.

Another symptom of departing from the original, international-law based design towards a model of an autonomous supranational tribunal is the under-use (bordering on non-use) of the interstate procedure under Article 24 ECHR. The disproportion between the practice of interstate procedures as compared to individual petitions is striking. Under Article 24, each Member State can complain about a violation of the Convention by another Member State. By the end of 2010, only fifteen applications by states had been lodged in this form, and only three led to judgments of the Court. Even this low number overstates the use of this procedure, as there have been multiple applications triggered by one and the same alleged violation: for example, the Turkish occupation of Northern Cyprus generated four interstate complaints.

Secondly, there may be a legitimate feeling among many of the West European states that they do not have much to learn from the other European states (and certainly not from the recently democratized ones) in the domain of human rights: France with its proud tradition of ‘public liberties’, going back to the Declaration of Rights of Man and Citizen, the United Kingdom with its commitment to common law as the paramount guarantor of individual liberty, Germany with its strong dignity-based constitutional rights forged as a response to the horrors of the Third Reich and subsequently consolidated by the progressive case law of the Karlsruhe Court, etc. These mature liberal democracies do not necessarily look to Strasbourg to learn how to protect their citizens’ rights, nor do they feel the need. Hence, there is a certain degree of complacency, on the part of lawyers from West European states, about the consequences of joining the ECHR. As a leading UK constitutional lawyer commented in the early 1960s: ‘The rights and freedoms there proclaimed [in the ECHR] were, to a very large extent, already recognized in English law—not as formal constitutional or statutory guarantees but as residual rights, liberties and immunities of the individual.’38

This attitude is partly a matter of self-satisfaction and partly a well-founded feeling that, at times, complying with supranational human rights adjudication may result in a lowering rather than an improvement of the standards of protection of human rights. An Italian legal scholar Massimo Luciani provides the example of freedom of commercial information: in the case law of the Italian Constitutional Court, it is interpreted as part of economic freedoms and is given only a limited protection, while the ECtHR articulates it as part of freedom of expression and thus awards it a much higher level of protection.39 Luciani thus concludes: ‘It is clear that the introduction of the Strasbourg court case law in Italy would have a consequence of enriching the protection of rights only in an illusory way considering the severe implications it would have towards the protection of privacy.’40 In fact, the current doctrine of the Italian Constitutional Court is that, when there is an issue of consistency of the national law with the ECHR and the inconsistency cannot be removed by interpretive methods, the constitutional judges must verify whether the protection offered to fundamental rights by the ECtHR is equivalent to that guaranteed by the Italian Constitution. This is presented by the Constitutional Court as finding the appropriate balance between the constitutional obligations stemming from international law (including, from the ECHR) and respect for the other constitutional values protected by the Italian Constitution.41 As two Italian commentators recently observed, this implies that the ‘Solange doctrine’ (a term formulated with regard to the relationship between the ECJ and national constitutional courts, as discussed in Chapter 3) ‘has now also become the basis for a dialogue between the [Italian Constitutional Court] and the European Court of Strasbourg’.42

The unreserved incorporation of supranational case law as binding in a domestic system may often be perceived, justifiably, as not taking into account local traditions and culture, which is the concern that lies behind the margin of appreciation doctrine. Consider the Spanish case of Moreno Gómez,43 which raised the issue of whether high noise levels are a violation of a constitutional right of privacy. The Spanish Constitutional Tribunal was rebuked by the Strasbourg Court, which found a violation of Article 8 ECHR, notwithstanding the Spanish Tribunal’s view to the contrary. But the national court’s approach may be well appreciated ‘in a rather noisy country where tolerance levels are high’.44 As a leading Spanish constitutional lawyer and President of the Council of State noted, the right to environment proclaimed by the Spanish Constitution is not classified as a ‘fundamental right’ and thus does not give rise to a ‘recurso de amparo’.45 This line of cases caused a degree of criticism in Spain. As Francisco Rubio Llorente complained, ‘the decisions of the ECtHR condemning Spain are generally interpreted [in Spain] as a disavowal of national judges, whose authority is therefore weakened’.46

Yet another example of a different balancing of competing values involved in the proportionality test can be provided by the divergence between the Strasbourg Court and the German Federal Constitutional Court in the famous case regarding Caroline of Monaco:47 the European Court found that in the balancing of the protection of the right to privacy (Article 8 ECHR) versus the freedom of the press (Article 10 ECHR), the German Court had improperly privileged the latter because the published photographs did not ‘come within the sphere of any political or public debate’,48 and also criticized the characterization of Caroline of Monaco as a public figure when ‘the interest of the general public and the press [in her] is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions’.49