Relation of Constitutional Courts / Supreme Courts to ECtHR
Kanstantsin Dzehtsiarou, Natasa Mavronicola
- Constitutions and international law — Powers and jurisdiction of constitutional courts/supreme courts — Supranational constitutional courts
A. Starting Points and Synergies
1. The relationship between constitutional or supreme courts of the contracting parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) and the European Court of Human Rights (ECtHR) could, as a matter of principle, be seen as premised on the ideal of a mutually respectful, and fruitful, interaction. The starting point is that the constitutional or highest appellate domestic courts of each contracting state and the ECtHR are engaged in the interpretation and implementation of the ECHR, insofar as cases concerning human rights are concerned. Indeed, they may be said to bear a ‘shared responsibility’ to protect the rights enshrined in the Convention (Gerards 21; Glas 157). The Preamble to the Convention also encourages smooth collaboration and cooperation of the contracting parties in the area of human rights protection. This logically translates into collaboration between the national courts and the ECtHR. This is arguably part of a bigger picture, whereby the ECHR constitutes a transnational legal system (see also transnational constitutional law) within which every public official, including the courts, is under a duty to secure the human rights of persons within their jurisdiction (Andenas and Bjorge 181). In this regard, it has been aptly observed by Keller and Stone Sweet that ‘courts have taken the lead in incorporating the Convention’ (Keller and Stone Sweet 687). This is as it should be (Bjorge (2015)), especially given the vital need for the contribution of national courts towards the more effective implementation of the ECHR at the national level, which would also go a long way towards alleviating the significant caseload of the ECtHR (Bates (2010) 515; Wildhaber 12; Dzehtsiarou and Greene 1708). Embeddedness of the ECHR in national legal orders is the key to the effectiveness of the ECHR (Helfer) and national courts are the main allies of the ECtHR in making this embeddedness possible. Human rights should first and foremost be protected by the national authorities of the contracting parties to the ECHR.
1. The Legal Starting Point
2. From a formal legal perspective the relations between the ECtHR and the contracting parties are fairly straightforward. The contracting parties are obliged to comply with the Convention and execute the judgments of the ECtHR. In order to do that they have to establish effective remedies that can rectify human rights violations. In terms of the key legal precepts underpinning these starting points, the principle of pacta sunt servanda warrants mentioning: this encapsulates the idea that (international) agreements are binding and should be given effect to in good faith. Additionally, Arts 32 and 46 of the ECHR are relevant here. Art. 32 provides that the ECtHR has jurisdiction on ‘all matters concerning the interpretation and application of the Convention and the Protocols thereto’, while Art. 46 maintains that contracting parties ‘undertake to abide by the final judgment of the (ECtHR) in any case to which they are parties’. Lastly, the principle of the exhaustion of domestic remedies is pertinent. This principle, as explained by Spano, is based on the assumption that there is an effective remedy available domestically in respect of the alleged human rights violation and allows states an opportunity ‘to put matters right through their own legal system’; accordingly, the supervisory jurisdiction of the ECtHR may only be invoked after the remedies offered domestically have been exhausted (Spano 500). At the same time, there is no obligation to have recourse to remedies which are inadequate or ineffective (Vučković and others v Serbia ECtHR (25 March 2014) para. 73). Thus, on this principle, it is incumbent on national authorities, including courts, to provide adequate and effective remedies for any alleged human rights breaches domestically; otherwise, individuals will seek to avail of the right of individual petition to the ECtHR.
2. The Relationship in Practice
3. Notwithstanding these starting points, the practical dynamics of the relationship between constitutional/supreme courts and the ECtHR is more layered and nuanced. The dynamics of this relationship are not only, or even mostly, shaped by these legal precepts and, now, the prospect of the advisory jurisdiction of the ECtHR (on which see Dzehtsiarou and O’Meara); rather, they are also, or perhaps chiefly, delineated by domestic legal and constitutional mechanisms (Gerards and Fleuren), under the influence of second-order reasons, such as concerns regarding the separation of powers (Bjorge (2015) 4, 41) or national sovereignty (Hoffmann 428–429), and substantive legal (dis)agreement based on first-order reasons (on the distinction between first-order and second-order reasoning, see Raz). Much of the dialogue, encompassing both synergies and tensions, occurring between the ECtHR and the (highest) national courts takes place in the context of contentious cases that are dealt with by the ECtHR (Dzehtsiarou and O’Meara). Lastly, the political backdrop to these relationships, including the prevalence of Euroscepticism in some jurisdictions, cannot be neglected. This backdrop can have real legal consequences. For example, in the United Kingdom (‘UK’) the recurring theme of political discourse is a repeal of the Human Rights Act 1998 (Human Rights Act 1998 c42 (UK); hereafter ‘HRA 1998’), which transposes the ECHR into the domestic legal order, and replacing it with a potentially diluted set of rights enshrined in a ‘British Bill of Rights’. If such proposals are acted upon it would significantly reduce the impact of the ECtHR in the UK and undermine the reputation of the ECtHR.
4. It is worth noting that bilateral relationships between the ECtHR and the contracting parties to the Convention are further complicated by a significant third dimension in European constitutionalism, notably EU law. The triangular interplay is the topic of ever-increasing examination (among many, Krisch; Bianco and Martinico), but will not be significantly touched upon in this entry.
5. Another important observation is that domestic courts in a number of contracting parties are not expressly tasked by domestic law with interpreting and applying the ECHR. In monist states, such as France, where international law is directly applicable, the ECHR may be invoked in courts; but a given case might also be resolved through reliance on domestic rights instruments, including those enshrined in the state’s own constitution (dualism / monism; application of international law in domestic legal systems). The latter is prominently the case in dualist states such as Germany (Bjorge (2015) 77). In such states domestic law might be necessary as a proxy that would allow the case law of the ECtHR to be translated into the domestic legal system. An example of such domestic law in a dualist state is the HRA 1998, which Lady Justice Arden has described as ‘mak[ing] the Convention in effect a shadow constitution for the United Kingdom’ (Arden 5).
6. The status of the ECHR in contracting parties’ jurisdictions is further complicated to the extent that questions arise as to its rank vis-à-vis domestic law. Some contracting parties place it at the same level as the national constitution (for example, Austria), some states give it a supra-legislative status (for instance, France and Spain), and for some states the ECHR is equal to ordinary legislation (for instance, Germany). In France, for example, treaties are considered to be superior to ordinary legislation (see Art. 55 of the French Constitution of 1958) but subservient to the Constitution (M Koné (3 July 1996) (Fr) noted in Bjorge (2015) 115). In Germany, the ECHR formally ranks as ordinary law (Giegerich 2013), but German courts generally operate on the principle that all German law, including the Grundgesetz (Basic Law for the Federal Republic of Germany: 23 May 1949 (Ger), as amended), must be interpreted compatibly with theECHR (Giegerich). In Italy, the ECHR possesses the rank of ordinary law although some scholars have argued that it should be seen more as having constitutional status (Candela Soriano 405). In Russia, there is a debate as to whether the ECHR ranks on a par with the Russian Constitution or above statutory norms but below constitutional norms (Nussberger 617; Arts 15, 17 and 55 of the Constitution of the Russian Federation: 12 December 1993 (Russ), as amended). Recent case law of the Russian Constitutional Court discussed below has arguably closed this debate by placing the ECHR below the Russian Constitution in terms of legal supremacy (supremacy/primacy).
7. Additionally, domestic courts of the contracting parties are not necessarily tasked to, or do not necessarily see themselves as straightforwardly bound to, follow judgments of the ECtHR. Nonetheless, some jurisdictions provide explicit legislative guidance on this matter. Notably, in the UK, Section 2 of the HRA 1998 imposes a duty on courts and tribunals to ‘take into account…a judgment, decision, declaration or advisory opinion of the European Court of Human Rights…whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen’. Initially, the ‘mirroring’ principle was offered by national courts as the best reading of this provision: in his famous ‘no more but certainly no less’ dictum in R (Ullah) v Special Adjudicator (2004) (UK)),para. (20), Lord Bingham stipulated that UK courts are simply to follow ECtHR doctrine but not go beyond it. Nonetheless, Section 2 of the HRA 1998 has now been given a more nuanced reading. Baroness Hale, who sits on the UK’s Supreme Court, wrote in 2012 of examples of UK courts following their own line on human rights (Hale (2012)), including examples of courts going beyond Strasbourg’s substantive scope of rights protection: such as in Limbuela (R (Limbuela) v Secretary of State for the Home Department (2005) (UK)), where the UK’s House of Lords found that denial of any welfare support to destitute asylum-seekers amounted to a breach of Art. 3 of the ECHR, which proscribes torture and inhuman and degrading treatment and punishment, much earlier than a similar finding by the ECtHR (see MSS v Belgium and Greece in 2011). Bjorge suggests that the UK Supreme Court now tends towards ‘dynamic interpretation in cases where the standards of ECHR law remain uncertain’ (Bjorge (2010) 50).
8. Thus, the relationship between judgments of the ECtHRand the doctrinal pronouncements of contracting parties’ highest courts is not a straightforward matter. Whilst Art. 46 makes reference only to the parties to the case being bound by an ECtHR judgment, the ECtHR’s interpretation of the Convention in a case at hand may carry the harmonising force of res interpretata (Gerards 23), even beyond the parties involved. At the same time, given that the ECtHR adopts the approach of evolutive interpretation of the ECHR, which allows for dynamic interpretations of the terms which make up the rights enshrined in the Convention, it is apposite for national courts to adopt a dynamic approach as well. Courts operating within different legal traditions may, according to such traditions, be more or less at ease with dynamic interpretation: UK courts, for example, in light of the common law tradition, arguably exhibit a comparatively greater comfort with engaging in evolutive interpretation (Hale (2011)).
9. The relationship between constitutional/supreme courts and the ECtHR is also informed by the subsidiarity principle to which the ECtHR has, to some extent, adhered (Føllesdal, Peters and Ulfstein 15–17). It is particularly effected through the margin of appreciation, by means of which the ECtHR accords a measure of deference to the determination of both facts and law to the national authorities—including the highest courts (judicial deference). But ‘the margin of appreciation is sensitive to the legal and factual context of each case … [d]etermining its span is not a prelude to the exercise of judgment in a case, but intrinsic to it’ (Spielmann 56). In deciding on cases, the ECtHR accords a particular weight to findings of constitutional/supreme courts within contracting states. The weight placed might not ultimately prove decisive (see, for example, Vinter and others v United Kingdom (9 July 2013) (ECtHR Grand Chamber); and Markin v Russia ECtHR (22 March 2012) (ECtHR Grand Chamber)), as the Court may still decide otherwise. The outcome might encompass a combination of partial agreement and indeed reliance on the findings of the highest domestic court (eg A and others v United Kingdom (19 February 2009) (ECtHR) paras 170, 181, 182, 189–190) and partial departure from those findings (ibid paras 202–224). Lastly, the Court has also attributed significance to key judgments of constitutional/supreme courts of contracting states other than the respondent state in the case at hand: a prominent recent example of this is the Grand Chamber’s reliance on the Life Imprisonment Case (21 June 1977) (Ger) decided in the Federal Constitutional Court of Germany (Bundesverfassungsgericht) in delineating the demands of human dignity and Art. 3 ECHR vis-à-vis life imprisonment without parole in the UK (Vinter and others para. 113).
10. The synergies of constitutional/supreme courts and the ECtHR are particularly pronounced, and invaluable, in protecting marginalised individuals and (unpopular or disenfranchised) minorities (Anagnostou and Psychogiotopoulou). Studies attest to a considerable and ever-increasing development of a corpus of case law on the rights of minorities and marginalised persons in the domestic jurisdictions of states like France, Greece, Italy, Turkey, and the UK, such development being linked not only to receptiveness to the ECHR itself, but rather to the increasingly rich case law of the ECtHR on the protection of minorities and marginalised persons, including ethnic minorities, immigrants and asylum-seekers, and LGBTI persons (Anagnostou and Psychogiotopoulou; protection of ethnic minorities; immigration; LGBTI rights). This is representative of the true potential of the relationship between national courts—including constitutional/supreme courts—and the ECtHR to operate in a way which attains some of the minimum protections for all, which are envisaged in the counter-majoritarian ideal of human rights.
11. It could be said that the enterprising forces of constitutional/supreme courts, in conjunction with the principle of evolutive interpretation of the ECHR, sustain an endeavour to decide human rights cases appropriately. Additionally, reliance on judgments of constitutional/supreme courts contributes to the Court’s efforts to buttress the (perceived) legitimacy of its interpretation of the ECHR, in part through premising it on convergence amongst contracting states, including as exhibited in judgments of domestic courts (Dzehtsiarou (2015) 40–45).
12. The relationship between constitutional/supreme courts and the ECtHR is a key parameter of the ‘deep, structural transformations of law and politics in Europe’ (Andenas and Bjorge 181). The shaping of human rights by these bodies can often involve a cyclical, evolving process. At the same time, the tensions outlined above attest to a complex ‘push and pull’ dynamic, which is unlikely to dissipate. Indeed, constitutional/supreme courts may appropriately keep Strasbourg on its toes. At the same time, the potential for pragmatic ‘underenforcement’ of human rights via the margin of appreciation (Tsarapatsanis) in the face of domestic discontent remains a concern, given the counter-majoritarian ideal embodied in human rights (Letsas 74; cf Dzehtsiarou (2015) Chapter 5).
13. Lastly, it is worth noting that there also exists a tentative relationship between at least certain constitutional/supreme courts of states which are not signatories to the ECHR and the ECtHR. Reference is sometimes made by the ECtHR to judgments of non-European courts in its assessment of a case (noted by McCrudden)—an example being the reference to Canadian, South African and US jurisprudence in Vinter v UK (in the Grand Chamber (9 July 2013) para. 73 and in the Fourth Section (17 January 2012) paras 59–67). Additionally, there is consideration of ECtHR judgments by non-European constitutional courts as persuasive precedent (see, for example, S v Makwanyane and Another Case (S Afr) (6 June 1995) paras 68–69, 81, 86, 109, 110, 305 (S Afr)). Although overreliance on ‘foreign’ legal sources could be criticised as problematic from the point of view of the formal hierarchy of legal sources, some engagement in global dialogue and awareness of global trends sits well with the ECtHR’s role as a global actor in the area of human rights protection.
14. As already indicated, relations between the ECtHR and national courts of contracting states are complex, and are not always collaborative and smooth. Sometimes national courts, who are supposed to be the key allies of the ECtHR at the national level, fail to implement the ECtHR’s judgments. This can be detrimental to the effectiveness of the Convention in general and the case law of the ECtHR in particular as the judgments of the Court need to obtain their practical effect through the national authorities, and arguably through permeating domestic law, including the decisions of national courts. The Strasbourg Court does not have the resources to rectify every human rights violation in Europe, and offering redress for such violations is primarily the task of national legal systems; the main role of the ECtHR is to fine-tune the development of human rights standards. Therefore its collaboration with national judicial institutions is crucial (Thomassen).
15. Disagreements between the ECtHR and the highest national courts can signify and/or lead to tensions. Such tensions can be exacerbated where specific disagreement in a particular case coincides with anti-European political rhetoric in the state at hand. If the national courts begin to perceive the ECtHR as overly activist in the sense that its judgments unduly penetrate the fabric of their national sovereign state or fundamental constitutional principles, they might seek to reassert that they are the ultimate judicial decision-makers on the national level.
16. In considering how the national courts have demonstrated resistance to the ECtHR, we examine resistance at two levels. One form of resistance is demonstrated where the national courts emphasise, on second-order reasons, the priority of their domestic constitution over the ECHR, and consequently their institutional superiority, for determining human rights issues. This could be seen as resistance on a constitutional level. Another form of resistance arises where national courts disagree in substance with some particular decisions of the ECtHR and push the ECtHR to engage into substantive dialogue on the issue of this disagreement. It amounts to tension or resistance on the adjudicatory level. These two levels often overlap. Moreover, sometimes principled disagreement on a particular substantive question triggers resistance on the constitutional level. If adjudicatory resistance leaves some scope for dialogue, resistance on the constitutional level arguably halts this dialogue, with the national courts simply reclaiming ultimate decision-making power on how, and how far, ECtHR case law is to be implemented domestically.
1. Tensions on the Constitutional Level
17. We explore the tensions on the constitutional level by reference to judgments of German, Italian and Russian constitutional courts. As noted above, there is no uniform approach across Europe as to the status of the ECHR, and judgments of the ECtHR, domestically. While this complexity has an obvious impact on the relations between the national courts and the ECtHR, this formal legal position of the Convention does not strictly predetermine the attitude of national constitutional courts to the ECtHR and the relationship between these.
18. Tensions on the constitutional level arguably emerged quite powerfully in Germany’s Federal Constitutional Court (Bundesverfassungsgericht). Germany has a very effective system of constitutional protection of human rights, overseen by the Federal Constitutional Court, which is able to hear individual petitions. This is one of the reasons why the ECtHR does not have too many admissible applications from Germany (Bjorge (2015) 77). Having said that, the relations between the Bundesverfassungsgericht and the ECtHR have sometimes been difficult. In the famous judgment of the Bundesverfassungsgericht in Görgülü (14 October 2004) (Ger) the supremacy of the German Constitution over the ECHR was clearly declared. At the same time the Bundesverfassungsgericht encouraged the German national courts to interpret the national legislation in harmony with the ECHR, asking them ‘to take account of the European Convention on Human Rights as interpreted by the Strasbourg Court in making their decisions’ (Görgülü 315). It is notable that the Bundesverfassungsgericht used the terms ‘take account’, which is looser than its earlier choice of terms such as ‘abide by’ (Tomuschat 523). The legal priority of the German Constitution stems logically from the text of the Constitution and it would have been surprising if the Bundesverfassungsgericht declared it is subordinate to an international treaty, in this case the ECHR. Despite that some commentators called the judgment in Görgülü as a sign of a serious crisis (Rackow 383).
19. It remains unclear why the Bundesverfassungsgericht needed to re-emphasize the fact that the German Constitution enjoys the highest legal force in Germany in its judgment in the case of Görgülü. Some commentators argued that this remark of the German Constitutional Court was the reaction to the ECtHR’s activist position in the case of Von Hannover v Germany (No 1) (24 June 2004). In that case the applicant, Princess Caroline von Hannover, claimed that her right to privacy had been violated by journalists who took and published photos of her in public places but private life situations (Rackow 380). The Bundesverfassungsgericht ruled in favour of freedom of expression and did not find a violation of the right to privacy; the ECtHR disagreed and maintained that Princess von Hannover’s right to privacy had not been adequately respected. The Bundesverfassungsgericht mentioned the Von Hannover (No 1) judgment in Görgülü to remind the ECtHR of the limits of its supervisory role. It seems that from the legal point of view the decision of the Bundesverfassungsgericht does not bring anything new to the discussion of the interaction between the ECtHR and the national legal orders. Its importance lies at the political import of the statements made. The Bundesverfassungsgericht emphasised that it is up to it to decide how and to what extend the judgments of the ECtHR will have an impact within the country. The constitution in this case is deployed to emphasize that the German Court can, in some circumstances, depart from ECtHR judgments, or indeed from the ECHR itself.
20. The Görgülü judgment mainly reflects what is usually provided for under national constitutions, namely the primacy of national constitutions over international treaties. As regards the relationship between the Bundesverfassungsgericht and the ECtHR, Görgülü can be read as sending a particular message. The message is that it has accepted the authority of the ECtHR in interpreting the ECHR, but reserved the remit to disagree with, and depart from, ECtHR rulings in future. The message to the lower German courts was also clear—the case law of the ECtHR should be taken into account unless it falls in a very limited area of possible confrontation with the Constitution.
21. In 2007 the Italian Constitutional Court clarified the place of the ECHR in the hierarchy of legal sources in Italy, locating the ECHR between the Constitution and the national statutes: below the former but above the latter (Judgments Nos 348 and 349 (24 October 2007) (It); Biondi and Fontanelli). Attaching a super-legislative status to the ECHR means that the Constitutional Court needs at least to take into account the case law of the ECtHR. Yet the Italian Constitutional Court had limited the impact of the Strasbourg case law by suggesting that Italian judges should give effect to an ‘established interpretation’ of ECHR provisions in a manner which respects ‘the essence’ of case law of the ECtHR (Judgment No 317 (4 December 2009) para. 6; see Pollicino 372). More recently the Constitutional Court has emphasised that the national courts should not act as blind recipients of the standards that come from Strasbourg—rather, on the Italian Constitutional Court’s account, although ECtHR case law cannot be disregarded by national courts once it has become consolidated, isolated rulings which do not reflect ‘consolidated’ case law and are not pilot judgments do not have to be applied in general, beyond the particular facts of the case to which they relate (Judgment No 49 (14 January 2015) (It); Martinico 2016). It is not entirely clear what established or consolidated case law or interpretation really means and how well the position of the ECtHR should be consolidated in order to have some influence on the decisions of the national judges.
22. It seems that the Italian Constitutional Court is aiming to safeguard its own autonomous determination of constitutionality. It has effectively stated that the national judges should interpret national law as much as it is possible in light of the consolidated or established case law of the ECtHR. It seems that the ultimate decision-maker of whether the case law is ‘established’ or not is the Italian Constitutional Court. Again as in the case of Germany the Italian Constitutional Court aims to define the parameters of its relationship with the ECtHR. Yet unlike the German Court which reserved limited scope for disagreement, the Italian Constitutional Court has carved a limited scope for direct implementation of the case law of the ECtHR.
23. The ongoing tensions between the ECtHR and the Russian Constitutional Court to some extent reflect some of the key points that have just been discussed, but with certain significant differences. The socio-political situation in Russia should be taken into account. Russia’s legal system is not premised on the same commitment to the rule of law as that displayed broadly in Germany or Italy. In its confrontation with the ECtHR, the Russian Constitutional Court does not only express its own annoyance with the ECtHR but also, to some extent, reflects the anti-European and anti-human rights rhetoric of Russian authorities more generally, examples of which are numerous and invocation of which is often linked to the misconstrued understanding of the notion of ‘sovereignty’ (Bowring 431). This context allows us to understand better the underlying reasons of tensions that exist between the Russian Constitutional Court and the ECtHR and also to appreciate the potential wider implications of such confrontation.
24. As in the case of Germany and Italy, the Russian Constitution is also formally legally superior to the judgments of the ECtHR. By emphasising that fact recently, the Russian Constitutional Court did not make any ground-breaking departures from the formal hierarchy of legal sources established in Russia. In its judgment of 14 July 2015 the Constitutional Court of Russia posited that the judgments of the ECtHR should be executed by the national authorities but indicated that they can depart from international obligations established in such judgments in exceptional situations when the execution would lead to breaches of the foundational principles and norms of the Russian Constitution (p 13, para. 2 of the judgment). The judgment of 14 July 2015 was the key legal pronouncement of the Russian Constitutional Court that does not only reflect the negative image of the ECtHR and human rights created by Russian authorities but also flows from a longstanding dissatisfaction of the Russian Constitutional Court itself with what it has perceived to be the activism of the ECtHR.
25. The Chamber judgment of the ECtHR in the case of Konstantin Markin (Markin v Russia (7 October 2010) (First Section)) was one of the reasons for the hostility displayed by the Russian Constitutional Court towards the ECtHR. The case of Markin concerned discrimination against male military personnel in Russia with regards to their access to parental leaves established by domestic law. The Russian Constitutional Court declared that this discrimination was objectively justified and did not violate the Russian Constitution. In the Chamber judgment the ECtHR disagreed with the Russian Constitutional Court, found a violation of the ECHR and called the arguments of the Russian Constitutional Court ‘unconvincing’ (Markin (First Section) para. 57). Moreover, the ECtHR explicitly criticised the defects of that judgment by stating that
the Constitutional Court based its decision on a pure assumption, without attempting to probe its validity by checking it against statistical data or by weighing the conflicting interests of maintaining the operational effectiveness of the army, on the one hand, and of protecting servicemen against discrimination in the sphere of family life and promoting the best interests of their children, on the other (Markin (First Section) para. 57).
This case was referred to the Grand Chamber which softened the rhetoric of the Chamber but nevertheless found a violation of the ECHR. One can argue that the above mentioned judgment of the Russian Constitutional Court from 14 July 2015 is at least to some extend a response of this court to the harsh criticism of the ECtHR in Markin. Moreover, in its judgment of 14 July 2015 the Russian Constitutional Court explicitly referred to the ECtHR judgment in Markin suggesting that in 2010 ‘there was a conflict between the Russian Constitutional Court and the European Court of Human Rights’ (p 22, para. 4 of the judgment).
26. The Russian Constitutional Court sought to affirm the supremacy of the foundational principles and norms of the Russian Constitution but also purported to outline the circumstances in which the contracting states are free to ignore the judgments of the ECtHR. With reference to the Vienna Convention on the Law of Treaties (‘VCLT’) the Russian Constitutional Court emphasised that a treaty should be interpreted in accordance with the ordinary meaning of the terms of the treaty (Art. 31 VCLT). If the treaty is not interpreted in accordance with such ordinary meaning then the contracting state can disregard such interpretation (p 15, para. 3). It seems that, on this understanding, it is up to the national legal system to decide whether the treaty has been interpreted in accordance with the ordinary meaning of the treaty or not. This opens a very broad and undefined set of opportunities for national courts to ignore the judgments of the ECtHR. It therefore has the capacity to considerably undermine the effectiveness of the Strasbourg system of human rights protection.
27. The judgment of 14 July 2015 was promptly followed by legislative amendments that broadened the scope of Constitutional review of the Russian Constitutional Court. The Russian Parliament adopted amendments to the Law on Constitutional Court in 2015 (Федеральныйконституционныйзаконот 14 December 2015) (N 7-ФКЗ) allowing the Russian Constitutional Court to declare the judgments of the ECtHR unenforceable insofar as they contradict the foundational norms of the Constitution. The Venice Commission has analysed these amendments and expressed its concerns. The Venice Commission stated that:
States have to remove possible tensions and contradictions between rulings of the European Court of Human Rights and their national systems, including—if possible—via means of dialogue. This is a tool which has proven its effectiveness in many instances, in several Council of Europe member States. The Russian Federation should have recourse to dialogue, instead of resorting to unilateral measures, which are at variance with the Vienna Convention on the law of treaties which stipulates that a state has to interpret the treaty ‘in good faith’ (Art. 31) (Venice Commission Interim Report para. 100).
28. The trajectory of tensions between the ECtHR and the Russian Constitutional Court reached a new level when on 19 April 2016 the Russian Constitutional Court deployed its newly obtained competences to declare judgments of the ECtHR unenforceable. The Russian Constitutional Court considered whether the ECtHR judgment in the case of Anchugov and Gladkov v Russia (4 July 2013) can or should be implemented. In this case the ECtHR declared that the provision of the Russian Constitution that establishes disenfranchisement of all convicted prisoners violates the ECHR (prisons and prisoners). In its judgment, the Russian Constitutional Court declared that the ECtHR judgment in Anchugov and Gladkov is unenforceable because its execution would require enfranchising of certain prisoners which is contrary to the Constitution of Russia. Surprisingly, the Russian Constitutional Court did not stop there and decided to reinterpret the judgment of the ECtHR, claiming that execution of Anchugov and Gladkov is not in fact required as the Russian legal system already complies with the Convention standards despite the ECtHR’s ruling to the contrary. The Russian Constitutional Court assumed the role of the ECtHR and clearly indicated to the latter that it has erred in its interpretation of the Convention.
29. It seems that the tensions between the Russian Constitutional Court and the ECtHR have risen to a totally new level if compared with Germany or France. The Russian Constitutional Court is allowed by the national statute to disregard a particular judgment, a power that neither German nor Italian Constitutional Courts possess. This legal provision does not sit well with Art. 46, which establishes the obligation on the contracting parties to abide by the final judgment of the ECtHR in any case to which they are parties.
30. In these examples, especially in the case of Russia, it is unlikely that the ECtHR can do much to switch the collaborative mode back on. The resistance on the constitutional level cuts the dialogue short; in this case the national constitutional courts define the area in which the dialogue is possible, pointing out that they are the ultimate decision makers on the national level. They expect the ECtHR to defer to the national legal order; however, sometimes the ECtHR is not in a position to do so. In this situation, if the national constitutional court uses resistance on the constitutional level, the case at hand will remain unenforced and the legal state of affairs will continue to be unclear. The state remains under the obligation to execute this judgment according to Art. 46; but the national courts are not in a position to engage in meaningful dialogue because according to them this issue falls outside the realm of national constitutionality.
2. Tensions on the Adjudicatory Level
31. Resistance and tensions on the adjudicatory level are much less problematic and detrimental to the reputation of the ECtHR and national constitutional courts. In this case national constitutional courts do not declare their ultimate authority but rather express their disagreement with a particular decision of the ECtHR and clearly explain their reasons for such resistance. One of the most well documented examples of such resistance is the Horncastle saga, namely the discussion between the Supreme Court of the United Kingdom and the ECtHR of some aspects of Art. 6 (Right to Fair Trial) (right to a fair trial in administrative law cases; right to a fair trial in civil law cases; right to a fair trial in criminal law cases). In the centre of this discussion was the ECtHR’s ‘sole and decisive test’ which means that if the testimony of an absent witness is a sole and decisive reason for conviction then the violation of Art. 6 ECHR will be almost automatically established. This test has been re-emphasised by the ECtHR in its Chamber judgment in the case of Al-Khawaja and Tahery v United Kingdom (20 January 2009). This case was then referred to the Grand Chamber of the ECtHR. In the meantime the UK Supreme Court had an opportunity to present its legal position on the same issue in the case of R v Horncastle (9 December 2009) (UK). The Supreme Court explained that the ‘sole and decisive’ test is too rigid and inflexible and it does not take into account various safeguards provided by the national law. The Grand Chamber in the Al-Khawaja and Tahery judgment considered the arguments of the Supreme Court and agreed with them. The Grand Chamber reassessed the ‘sole and decisive test’ and made it more flexible. Judge Bratza, in his concurring opinion, called this exchange of legal opinions ‘a good example of the judicial dialogue’.
32. There is thus scope for, and numerous instances of, ‘meaningful dialogue’ (Amos) between constitutional/supreme courts and the ECtHR. Forthright disagreement with ECtHR doctrine by constitutional/supreme courts can foster what the UK Supreme Court referred to as ‘constructive dialogue’ (Manchester City Council v Pinnock (3 November 2010) para. 48 (UK)). In what way might dialogue between constitutional/supreme courts and the ECtHR be ‘constructive’ or ‘meaningful’? There are a number of ways in which this might occur, such as: 1) circumstances in which constitutional/supreme courts rectify a misreading of domestic law by the ECtHR, a good example being the UK Supreme Court’s critical take in Horncastle on the ECtHR’s Chamber judgment in Al-Khawaja and Tahery, which persuaded the ECtHR’s Grand Chamber to depart from the Chamber’s finding (Al-Khawaja and Tahery v United Kingdom (15 December 2011) (ECtHR Grand Chamber)); 2) instances of constitutional/supreme courts offering arguments which are adequate to justify the particular scope of rights protection accorded by their state in the matter at hand, despite disparity with other states, as in the recent Grand Chamber judgment of Armani Da Silva v United Kingdom (30 March 2016) (ECtHR Grand Chamber), concerning Art. 2 ECHR; 3) circumstances in which the attitude of constitutional/supreme courts compels the ECtHR to elucidate its reasoning on a given subject matter, such as in the prisoner voting rights saga (Bates (2014)); and 4) circumstances in which the ECtHR heeds constitutional/supreme courts to adopt a new understanding of the substantive scope of a human right.
33. Unlike in the case of resistance on the constitutional level the national courts do not try to delimit the scope of the dialogue, but rather engage earnestly in substantive dialogue. This sort of resistance is very valuable and it prevents the ECtHR from merely dictating their preferred standards of human rights protection to the national courts. This resistance encourages the ECtHR to be more robust in its reasoning, use more convincing arguments and be more open to alternative solutions to legal issues. The ECtHR has to encourage and be ready to engage with this sort of resistance: it is a constructive dialogue that improves the quality of the decision-making and gives the national courts some ownership of the agreed standards.
34. It is apposite, in our view, to see the highest courts of the ECHR contracting parties as trustees of the ECHR (Bjorge (2015)), rather than simply the ECtHR’s ‘marionettes’, a term used, but not endorsed, by Gerards and Fleuren (Gerards and Fleuren 7). The ECHR can appropriately be seen as shaped by a myriad of institutions and actors, not least the ECtHR and the contracting states’ highest courts, with the ultimate beneficiaries being the millions of individuals who find themselves under the jurisdiction of one of the contracting parties to the ECHR. At the same time, this depiction does not exhaustively capture the complex relationship between constitutional/supreme courts and the ECtHR. Many different elements inform the relationship: the ECHR’s provisions themselves; the interpretation of these provisions by the ECtHR and the principles adopted alongside of it, such as the margin of appreciation and the idea of evolutive interpretation; the way the ECtHR’s interpretation and application of the provisions of the ECHR are influenced by the findings of supreme/constitutional courts; the duties and powers of supreme/constitutional courts to interpret and apply the ECHR; the way these duties and powers interact with the domestic constitutional framework in which the courts are operating; and the way national courts opt to act in light of such duties and powers and in light of the ECtHR’s interpretation. Insofar as dialogue occurs at the adjudicatory level, and is informed by substantive disagreement, we consider it to have the capacity to be constructive for both domestic courts and the ECtHR, and for the effective absorption and implementation of the rights enshrined in the ECHR more broadly. On the other hand, tensions on the constitutional level disclose a more complex, layered, and potentially pernicious domestic resistance to the ECtHR and, possibly, to human rights norms and the rule of international law more broadly.
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