I. Introduction
The European Court of Human Rights (the ECtHR or the Court) has profound importance in domestic legal systems within the Council of Europe.Footnote 1 This raises the question of whether the Court could or should be seen not only as an international court, but also as a court with domestic constitutional functions. This claim may find support in the ECtHR’s repeated characterisation of the European Convention on Human Rights (ECHR) ‘as a constitutional instrument of European public order (ordre public)’.Footnote 2
In this article I take as point of departure that we have a pluralistic legal system in the sense that the ECtHR is an international court operating in a legal system different from that of national constitutional courts. On the other hand, I argue that the relationship between the ECtHR and national courts is far more integrated than what most conceptions of pluralism between international and national law suggest. The judicial review undertaken by the ECtHR has effects in national law through the recognition of the Court’s practice by national courts. In this sense the Court’s practice is of a transnational nature.
My central argument is that these legal effects should be considered constitutional because they affect the relationship between national constitutional organs and the individual, as well as the relationship between different constitutional organs. Therefore, constitutional principles should be adapted to this new transnational setting and be applied in the interaction between the ECtHR and national courts. This means that we have a new dimension of the separation of powers which forms part of a transnational constitutionalisation.
The transnational legal integration does not go unchallenged and differs among different constitutional systems. For example, the United Kingdom and Denmark as host nations of the ECHR ministerial conferences in, respectively, Brighton (2012) and Copenhagen (2018) tried to restrict the power of the ECtHR. However, the outcome documents of the two conferences demonstrated strong support for the Court.Footnote 3 The current tension between the ECtHR and the Russian Constitutional Court bears also mentioning. But, as I will come back to, such frictions are to be expected in a pluralist system and should not distract from the dominant tendency of increasing integration between the ECtHR and domestic courts. My ambition is to analyse the general features of this integration from a constitutional perspective.
First, I present views by different authors on the constitutional status of the ECtHR (Section II). Then, I advance my arguments for why the ECtHR has constitutional effects in national law and therefore should be guided by constitutional principles (Section III). On the basis of the character of the ECtHR and its interaction with national courts I go on to ask how, respectively, the ECtHR (Section IV) and national courts (Section V) do and should interact based on relevant constitutional principles as adapted to the transnational setting. Finally, I draw some conclusions (Section VI).
II. The debate about the ECtHR as a constitutional court
There has been considerable interest in the constitutional aspects of the ECtHR. These issues were highlighted in connection with the adoption of Protocol 11 in 1994, which abolished the dual system of the European Commission and the Court on Human Rights. This naturally meant that the Court became more important. The debate was further vitalised as the Court’s interference in national law increased. Furthermore, as the ECtHR has faced an overload of cases, it has also been argued that the Court should primarily focus on cases of a constitutional character, i.e. cases of principle rather than providing justice in individual cases.
A former President of the Court, Rolv Ryssdal, discussed in an article from 1991 whether we were ‘On the Road to a European Constitutional Court?’Footnote 4 He was, however, rather modest by arguing that the Court might become such a court.Footnote 5 A member of the European Commission, Evert A Alkema, held 10 years later that interesting comparisons could be drawn with national constitutional courts, but that the ECtHR as such was not a constitutional court.Footnote 6
Another former President of the Court, Luzius Wildhaber, has a central place in the current discussion about the ECtHR as a constitutional court. In an article from 2002, he raised the question: ‘A Constitutional Future for the European Court of Human Rights?’Footnote 7 But he was cautious in his propositions. He argued that whether the ECtHR should be considered a constitutional court ‘is largely a question of semantics. We can always call it a quasi-Constitutional Court, sui generis’.Footnote 8 Wildhaber’s principal concern was that ‘it is essential for the Court to be given the means to reduce the flow of cases so that it can concentrate on its constitutional role’.Footnote 9 He continued: ‘The Court’s role should indeed be limited to the “constitutional” decisions of principle needed to build up a European public order based on human rights, democracy and the rule of law.’Footnote 10
Steven Greer has been a proponent of the ECtHR as a constitutional court. Similarly to Wildhaber, he argued that the ECtHR should deliver ‘constitutional justice’. Consequently, he held that the ‘primary purpose of the judicial process is not to benefit individual applicants at all, but remains, as it always has been, to enable the Court to address the most serious defects with Convention compliance in member states – “constitutional justice”’.Footnote 11 He claimed that the Court, in promoting a specific constitutional identity provided by the Convention, ‘has become the European constitutional court’.Footnote 12
Wojciech Sadurski emphasises the interaction between the ECtHR and national courts and argues that ‘[t]he way in which a national court may form a de facto alliance with the European Court of Human Rights effectively “pierces the veil of the State” and positions the European Court as a quasi-constitutional body at the pan-European level’.Footnote 13 It should be noted that Sadurski calls the Court quasi-constitutional, not constitutional. He furthermore says that ‘[w]hether the ECtHR should be regarded as truly constitutional depends on the yardstick used to measure constitutional character’.Footnote 14
The constitutional character of international law and institutions has been strongly contested by Nico Krisch. As the title of his book Beyond Constitutionalism: The Pluralist Structure of Postnational Law Footnote 15 indicates, he argues for a pluralist approach to the relationship between international and national law. This is also reflected in his chapter on human rights, where he claims that ‘the order we see emerging is a “pluralist” one … It is an order in which the relationships of the constituent parts are governed not by an overarching legal framework but primarily by politics, often judicial politics: where we find heterarchy, not hierarchy’.Footnote 16
Reviewers of Krisch’s book have, however, criticised the either/or approach to constitutionalism and pluralism. Alec Stone Sweet contends that the notion of ‘constitutional pluralism’ fits the empirical data of Krisch’s book better than the dichotomy constitutional/pluralism.Footnote 17 Constitutional pluralism as a depiction of the interaction of two legal orders has traditionally been used in the discourse on the relationship between the EU and national legal orders.Footnote 18 Yet, it has been argued that this concept is useful also beyond the EU context. Footnote 19 Stone Sweet’s view is echoed by Gregory Shaffer, who holds that legal pluralism and constitutional pluralism ‘have more in common than they do in opposition’.Footnote 20
The concept of constitutional pluralism has also been taken up by Wildhaber and Greer. In their article ‘Revisiting the Debate About “Constitutionalising” the European Court of Human Rights’,Footnote 21 their main concern continues to be that the Court should select its cases and adjudicate ‘in a much more strategically focused manner than at present’.Footnote 22 But in order to avoid ‘misunderstanding and misrepresentation’ they argue that ‘the constitutionalist paradigm now needs to incorporate a pluralist perspective’. Therefore, they ‘advocate “constitutional pluralism” as the best analytical paradigm’.Footnote 23
What we see is that authors use different formulations to characterise the ECtHR and its role in the wider legal environment. Whether the Court should be regarded as constitutional or quasi-constitutional depends on the definition of a constitutional court. Nobody claims that the ECtHR is similar to national constitutional courts. Furthermore, the statements vary as to whether they intend to characterise the current or a possible future status of the Court. Some authors are instrumental in the sense that they are concerned with particular aspects of the activities of the Court, such as whether it should have the power to select its cases and deliver ‘constitutional justice’. Increasingly, there seems to be a consensus on constitutional pluralism as an apt characterisation of the ECtHR and its relationship with national legal orders. However, Martin Loughlin has noted his disagreement with this concept. He says that ‘the concept of constitutional pluralism remains a misnomer’ and he calls it an oxymoron.Footnote 24
In contrast to constitutional pluralism, I emphasise in the next section that the ECtHR is an international rather than a constitutional court. Moreover, my concern is not whether the ECtHR should apply constitutional justice by only selecting cases of principle for the European legal order. Instead, I argue that the Court should apply constitutional standards in its review of decisions by the national legislature and judiciary.
III. Should the ECtHR be considered a constitutional court?
The commonality between the ECtHR and national constitutional courts is their function to review national legislation and other governmental acts as the superior organ in their respective legal orders. But whereas national constitutional courts review the ‘constitutionality’ of such acts, the ECtHR reviews their ‘conventionality’, i.e. their conformity with the ECHR.
The ECtHR as an international court reviews whether national governmental acts conform to an international legal instrument, i.e. the ECHR. The ECHR is formally a treaty, not a constitution. Violations of the Convention result in international legal responsibility. But the ECHR does not provide for direct effect of ECtHR’s judgments in national law. In contrast, judgments by national constitutional courts are legally binding at the national level – even if they contradict ECHR obligations. The different roles of the ECtHR and national constitutional courts in national law are an aspect of the pluralist character of the relationship between international and national law.
But the review undertaken by the ECtHR is of legal significance not only in the international legal order. The incorporation of the ECHR in domestic law through national legislation and jurisprudence gives domestic courts a means to review governmental actions in light of the ECHR. This review of the conventionality of governmental acts comes in addition to constitutional review.
In our context, the important point is that national courts are not only acting as gatekeepers in determining the extent to which international jurisprudence should be recognised as part of national law. They are actually facilitators in recognising the legal significance of the ECtHR’s practice in their function as review organs. Thereby, the ECtHR plays an essential role in the domestic review of governmental actions. The ECtHR may even influence the interpretation of legal norms of constitutional status, i.e. what is traditionally considered lex superior in national law. Hence, through the recognition of the ECtHR’s jurisprudence by national courts, the Court has an important function in the national judicial review of governmental acts – partly on the level of ordinary legislation and partly on the constitutional level.
In this way, the ECtHR plays an important role in national law in two areas traditionally seen as of constitutional character. The first is the relationship between the state and its citizens where the Court has a significant role in determining the content of relevant human rights. The other area is the ECtHR’s importance for the relationship between different national constitutional organs. Through its extensive case law, the ECtHR – as an international organ – has thus an essential indirect role in national judicial review of ECHR conventionality of legislative or executive acts. The combined effect is that the Court has important constitutional functions. This adds also a new dimension to the separation of powers: it has become transnational.Footnote 25 The ECtHR should take account of its role in the domestic constitutional order, whereas national constitutional organs – including domestic courts – should consider their functions in the interaction with the ECtHR.
The constitutional functions of the ECtHR go beyond what has been discussed as ‘judicial dialogue’ between courts.Footnote 26 It is appropriate to address the relationship between different international courts or between national courts from different jurisdictions as dialogue. In the relationship between the ECtHR and courts in the member states there is, however, an element of hierarchy. As already stated, the international and domestic legal orders should be considered as separate orders. But national courts take guidance from the ECtHR in interpreting national law in light of the ECHR. This means that the dialogue is different from that between courts of different national legal orders, or between different international courts. While the latter relationships may be seen as ‘horizontal’ in the sense that none of the courts are claiming superiority, the relationship between the ECtHR and national courts has a ‘vertical’ dimension since the ECtHR claims superiority in its interpretation of the ECHR, and this claim is generally respected by national courts.
Pluralism recognises, on the other hand, the difference between the international and the national legal order. But in the interaction between the ECtHR and the national constitutional order pluralism focuses on the exception rather than the prevailing characteristic of the relationship between the ECtHR and national courts. The most important feature of this relationship is the effort by national courts’ to ensure consistency between the ECtHR’s jurisprudence and national case law – while recognising the ECtHR as the supreme authority on the interpretation of the ECHR. It is this aspect of the ECtHR that should be given most prominence in our understanding of the Court’s constitutional function.
The term ‘constitutional pluralism’ seems to entail the fact that the ECtHR has characteristics comparable to constitutional courts, while operating in a different legal order. We have seen that the use of this terminology is preferred by Wildhaber and Greer. This is supported by Alec Stone Sweet and Mattias Kumm, who see constitutional pluralism as an aspect of a cosmopolitan order.Footnote 27
But the ECHR is, as stated above, formally a treaty, and not an international constitution. Even if one accepted that the term ‘constitutions’ should not be limited to the national context, the ECHR and the Council of Europe with its Parliamentary Assembly and Committee of Ministers do not establish legislative and executive organs with legally binding powers. Hence, the basic constitutional organs – except for a court – are missing. Furthermore, the ECtHR is different from the EU order and the Court of Justice of the European Union (CJEU) in that it does not claim direct effect and superiority in the national order. Finally, different legal orders comply with the ECtHR to different degrees which limits the constitutional integration.
Therefore, I argue instead that the ECtHR has important constitutional functions in the national legal orders of the member states – although the concrete interaction between the ECtHR and national legal orders may vary in extent and form between states and over time. This means that the Court should be subject to constitutional standards known from national constitutional law, especially the ‘[t]rinitarian mantra of the constitutionalist faith’Footnote 28: democracy, human rights and the rule of law.Footnote 29 But the constitutional standards should be adapted to the special features of this relationship. Here the principle of subsidiarity is of special relevance.
Subsidiarity aims at the protection of national sovereignty by leaving decision-making to states, unless it is more effectively or efficiently performed at the international level.Footnote 30 However, subsidiarity is well known as a constitutional principle in federal states in the allocation of competencies between the federal and local level.Footnote 31 Moreover, this principle may also be relevant for other parts of international law.Footnote 32 The principle of subsidiarity has been acknowledged in the subsequent ministerial declarations, most recently in the Copenhagen Declaration (2018) as well as in Protocol 15 to the ECHR.Footnote 33
In the following sections I outline how the Court in its human rights review of decisions by the national legislature and judiciary should also take into account democracy, rule of law and subsidiarity as a set of constitutional standards, but adapted to the pluralist setting of international and national law.
IV. The role of the ECtHR
The ECtHR shall protect human rights by ‘ensur[ing] the observance of the engagement undertaken by the High Contracting Parties in the Convention and the Protocols thereto’ (Article 19 ECHR). The Court applies the principle of subsidiarity by allowing states certain flexibility in the implementation of the international obligations, mainly by granting a margin of appreciation.Footnote 34 This means deference to the decision-making by national constitutional organs, including democratic decisions by the legislature. But the objectives of effective human rights protection and national flexibility may easily conflict. Such flexibility may also threaten the rule of law. How should the ECtHR deal with the tensions between human rights protection, democracy, the rule of law, and subsidiarity in a transnational constitutional manner?
The Court has repeatedly referred to the ECHR as a constitutional instrument of the European order.Footnote 35 But it should be noted that the Court’s characterisation refers to the Convention and not to the ECtHR itself. What is more, the Court applies this terminology to increase the substantive human rights protection, rather than to indicate the relationship between the ECtHR and domestic constitutional organs. For example, in Al-Dulimi the Court emphasised the need to uphold the principle of the rule of law to prevent arbitrariness.Footnote 36 Therefore, the Court’s reference to the constitutional character of the ECHR does not resolve the allocation of authority between the Court and national organs.
Review of decisions by national courts
The principle of subsidiarity establishes a presumption that decisions should be taken at the lower level, i.e. by national courts rather than by the ECtHR. But this presumption needs to be understood in light of the other constitutional aspects of the relationship between courts at the two levels, especially the need for protection of human rights and respect for the rule of law, as adapted to a pluralist legal setting.
The relationship between the ECtHR and national courts is first of all determined by what may be called functional deference . The ECtHR shall ensure effective protection of human rights and has the final word on the interpretation and application of the ECHR. This human rights function limits its deference to national courts. The ECtHR is also in a better position to interpret the ECHR than national courts. This is the day-to-day work of the Court while national courts are primarily concerned with domestic law (although ECHR law has become ever more important domestically). Furthermore, the Court must be supposed to have greater expertise than national courts when it comes to mapping any European consensus of relevance to the interpretation of the ECHR.Footnote 37 The reason is that its Registry has the capacity as well as the professional competence to analyse domestic law in the 47 member states. These are all arguments for leaving decision-making in such matters to the ECtHR.
On the other hand, national courts have the function of finally determining the interpretation and application of national law. In addition, they are experts on the content of national law, and closer to the relevant facts of the cases. This calls for a high threshold for the ECtHR’s review of the interpretation and application of national law and for the assessment of the facts of the case. This is acknowledged by the ECtHR in its insistence that it is not a court of ‘fourth instance’.Footnote 38 While the element of closeness to the facts may have aspects comparable to deference exercised by national constitutional courts in relation to lower courts, the expertise of the ECtHR with respect to national law is clearly different from that of the highest national courts, which are not only supposed to have the best knowledge of national law, but in addition determine in last instance the interpretation of national law. These different functions and expertise of the ECtHR as an international court and the highest national courts are aspects of the legal pluralism between the international and domestic legal orders.
The relationship between the ECtHR and national courts is further determined by a qualified deference. Here the ECtHR’s deference depends on the ‘quality’ of the judgments by the national courts. This is reflected in the Animals Defenders case (2003) on political television advertising, where the Court said that it ‘attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process’.Footnote 39
National courts stand a better chance to be allowed a wider margin of appreciation if they are able to convince the ECtHR that they have taken into account relevant principles of interpretation, such as the principle of proportionality, as applied by the ECtHR.Footnote 40 The Court stated for example in the von Hannover (No 2) case (2012) that ‘[w]here 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’.Footnote 41 Note the review standard of ‘strong reasons’.
On the other hand, there are limits to the deference applied by the Court. In its recent case law, the ECtHR has identified instances of bad faith implementation of ECHR standards.Footnote 42 In such instances, the need for ensuring effective implementation of the human rights obligations means that states do not benefit from the margin of appreciation. However, a challenge is how to apply a differentiation based on good or bad faith implementation without well-founded accusations that the Court applies double standards between member states.Footnote 43
Finally, we have situations of a qualified dialogue between the ECtHR and national courts. National courts may try to convince the ECtHR about a particular interpretation of the ECHR. This requires that the national courts interpret the ECHR in a way that the ECtHR finds convincing and apt for application on a European-wide basis. It is also helpful if the interpretation of the ECHR can convince other national courts in member states.Footnote 44
The Al-Khawaja and Tahery case (2011)Footnote 45 is an example of the ECtHR heeding the outcome from a national court. In this case, the UK House of Lords insisted that allowing witness statements without the possibility of cross-examination was not in violation of the requirement of a fair trial given the particular circumstances of the case. This was seen as a violation of the ECHR by the ECtHR Chamber, but was eventually accepted by the Grand Chamber. But we have seen several cases where both national courts and the ECtHR have taken mutual account of each other’s judgments and accommodated their practice. A prominent example involving the German Constitutional Court are the cases on freedom of expression in von Hannover (No 1) and (2).Footnote 46 This means that there can be a two-way interaction between the ECtHR and national courts, as opposed to a one-way influence of the ECtHR on the national judiciary.Footnote 47 But the dialogue is qualified in the sense that the ECtHR has the ultimate say on the proper interpretation of the ECHR.
However, an essential aspect of a constitutional system is its legal consistency. The margin of appreciation does allow for different practices under the umbrella of the ECHR in different national jurisdictions. For some observers, this can lead to fragmentation at the expense of the rule of law as a constitutional principle. Others see it as a necessary diversity within limits.
This diversity distinguishes the ECHR system from a monolithic national legal system. Elements of such diversity are not unknown in federal states which may apply the principle of subsidiarity in relation to their component parts. Regarding the margin of appreciation, it is the ECtHR, as the superior Court for the interpretation and application of the ECHR, which determines the applicability and the extent of the margin. Therefore, the ECtHR is able to determine unequivocally how far it allows national discretion, and, on the other hand, where it will enforce certain minimum standards in the interpretation of the ECHR.
It is also essential that the margin is only relevant for the application of the ECHR in a national context, but not for the interpretation of the Convention as such. The ECtHR may take into account the general practice of member states as an expression of a ‘European consensus’ and may even be persuaded by specific domestic courts about the best interpretation of the ECHR as part of a ‘judicial dialogue’. But the interpretation of the Convention will apply for all member states, whereas the margin of appreciation is only relevant for the application of the ECHR in the instant case.
Furthermore, the rule of law is not threatened in instances where the ECtHR considers national courts’ well-reasoned opinion about the proper interpretation of the ECHR. In such cases the issue is not whether to allow different interpretations in different national jurisdictions, but rather to find the best interpretation of the ECHR. Such openness from the ECtHR would not undermine legal consistency as required by the rule of law, but rather promote a sustainable interpretation of the ECHR which stands a better chance of being implemented by national courts. The ECtHR should, however, ensure that the views of all national courts pronouncing on a particular ECHR interpretation are taken into account to avoid that some national courts gain a greater influence in the interpretation of the ECHR.
Review of the national legislation
Let us now turn to the ECtHR’s review of decisions by the national legislature. This raises the question of the appropriateness of ‘constitutional’ review of democratic decision-making, which at the national level has been discussed in terms of its ‘counter-majoritarian’ character.Footnote 48 However, review of national laws by international courts differs in several respects from judicial review by national courts. How should the Court reconcile effective protection of human rights with democratic concerns, the rule of law and subsidiarity in a pluralist legal setting? And how does this balance affect its (democratic) legitimacy?
Armin von Bogdandy and Ingo Venzke ask in whose name international courts render their judgments.Footnote 49 They discuss the nomination and election of judges, the judicial process and characteristics of the judgments as aspects of the democratic legitimacy.Footnote 50 Mattias Kumm, on the other hand, says that questions of the democratic legitimacy of transnational governance are ‘widely overstated’.Footnote 51 Andreas FøllesdalFootnote 52 and Richard BellamyFootnote 53 have argued that decisions by the ECtHR may be democratically legitimate. I will first discuss the general aspects of the ECtHR’s democratic legitimacy before I outline how the Court in practice can balance human rights protection and respect for democracy in a transnational constitutional way.
The ECtHR deals with an issue that traditionally has been seen as a state prerogative: the relationship between state authorities and individuals. On the one hand, judgments by the Court may be seen as graver interference in national democracy than domestic constitutional review, since a national legislature is not able to respond by amending the ECHR, as opposed to amending the national constitution. Neither do we have an international democratic organ with delegated power to amend the ECHR. The only possible avenue would therefore be an amendment of the ECHR through ratification by all member states. Or the state may take the dramatic step of withdrawing from the ECHR altogether.
On the other hand, member states have through their democratic organs delegated powers to the Court to make binding judgments on the interpretation and application of the ECHR. The democratic support has been consistent over time. This support is also reflected in the national implementation of ECtHR judgments and in an increase of the substantive protection through adoption of subsequent protocols to the ECHR. The Court’s practice has also been endorsed in several Ministerial Declarations. There should therefore be no doubt that the ECtHR is generally supported by the democratic will of member states.
As we have seen, national authorities may also have some discretion on the basis of the margin of appreciation. And the ECtHR generally permits the national decision-maker to determine how judgments should be implemented.Footnote 54 These features of the ECtHR’s review leave room for the national legislature.
Finally, the ECtHR cannot declare national legislation null and void. It can only establish that a violation of the ECHR has occurred, and determine remedies at the international level. If we see it through the prism of national law, it is up to the state to decide upon the effects of the ECtHR judgments in national law. National courts may find that implementing a judgment would violate the constitution or ordinary legislation and may thus not to be enforced at the national level. Such non-recognition would be a breach of the international legal obligations but could be in perfect harmony with national law. This is also an aspect of the pluralist character of the relationship between the ECHR and domestic law. Hence, the interference of the ECtHR in national democratic decision-making is less intrusive than that of national constitutional courts.Footnote 55
It may be concluded that the ECtHR has a general democratic mandate, that national constitutional organs have a discretion in the domestic implementation, and that the Court’s judgments are only binding in international law. I will now turn to the question of how the ECtHR in practice should – from a transnational perspective – ensure effective human rights protection and promote the rule of law while paying due respect to the national legislature based on the principle of subsidiarity.
The importance of protecting political democracy as well as human rights is acknowledged in the preamble of the ECHR:
Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.Footnote 56
The Court has also shown its willingness to listen to the national legislature. In the Hirst case (2005) on prisoners’ voting rights, the Grand Chamber stated that ‘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 prisoner to vote’.Footnote 57 The assumption is that the ECtHR would have accorded more weight to the opinion of legislature if it had sought to weigh the competing interests and assessed the proportionality of prohibiting prisoners from voting.
This assumption is supported by cases where the Court attached great value to a thorough parliamentary examination of interferences in human rights. In the Animal Defenders case on political television advertising (2013) the Court attributed ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.Footnote 58
In S.A.S v France (2014), the Burqa case on wearing in public clothing that conceals the face, the Court emphasised the importance of its subsidiary role in light of the democratic legitimacy of national authorities. The Court referred to the ‘direct democratic legitimation’ of national authorities and stated that ‘[i]n matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’.Footnote 59 This view was reiterated in İzzettin Doğan and others (2016), also regarding freedom of religion.Footnote 60
Hence, the Court does respect the national legislature as an expression of political democracy and subsidiarity. As the Court says, in political issues where different opinions may reasonably occur in democratic societies, decisions by the legislature shall be accorded special weight. The central role of the national legislatures is supported by the fact that we do not have comparable representative organs at the international level. The Parliamentary Assembly and the Committee of Ministers of the Council of Europe do not have a democratic legitimacy comparable to national parliaments. While a European consensus may be a factor to be taken into account by the Court, this is at an aggregate level. The respect for the national legislature in the case at hand represents deference to the political process in an individual member state, and may even trump a European consensus.
The deference to national parliaments has both a substantive and a procedural element.Footnote 61 As I have discussed before regarding the margin of appreciation, the substantive element directs the Court to allow the national legislatures more discretion in choices between different values and societal interests. But a distinction may be made between parliamentary decisions concerning civil and political rights as a basis for political democracy, e.g. voting rights and freedom of expression, and decisions on other matters, such as environmental protection.Footnote 62 The discretion is subject to stricter control for the former rights.
The freedom to choose between different political outcomes should be respected on the basis of the margin of appreciation to an even greater extent than the diversity allowed in a federal state. This reflects the pluralism between the international and national legal systems. Nevertheless, the Court has a responsibility both for the effective protection of human rights and for the rule of law in the form of a consistent legal practice.
The procedural element, on the other hand, implies that national legislatures should be given special discretion if their decisions are the result of democratic procedures and based on methods of interpretation of the ECHR as developed by the Court.Footnote 63 A potential control of these procedures and methods raises, however, several dilemmas. First, it may be asked whether the ECtHR has sufficient knowledge about the considerations and procedures applied by the national parliaments. But an even more important dilemma is the diversity of democratic procedures applied in different countries and the question to what extent the Court should determine that one or some of the procedures are more democratic than others. This is very different from national constitutional review and there are good reasons for the Court to be cautious in declaring some procedures as more democratic. This means that subsidiarity should be given special emphasis when the choice of domestic democratic procedures comes under review.
V. The Role of National Courts
What about the role of national courts: do they interact with the ECtHR in what should be considered a transnational constitutional manner, and what are – and should be – the features of such interaction?Footnote 64
National authorities have an international legal obligation to implement ECtHR judgments when they are parties to a case (Article 46). But national courts go far beyond what is required by judgments against the particular state. They take account of the general practice of the ECtHR.Footnote 65 This should – as argued above – be seen as an aspect of constitutionalisation: national courts and the ECtHR act generally as a consistent legal system, with the ECtHR as the ultimate interpreter of the ECHR. This may be seen as a top-down approach: national courts are expected to follow the lead of the ECtHR.
In addition, the adoption on the new Protocol 16 means that national courts may request advisory opinions from the ECtHR.Footnote 66 Article 1 of the Protocol establishes:
Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.
The opinions shall be delivered by the Grand Chamber (Article 2(2)) and – as the name indicates – not be legally binding (Article 5). But this new procedure opens up an opportunity for a more interactive relationship between national courts and the ECtHR.
Former President of the Court, Dean Spielmann, refers to Protocol 16 as the ‘Protocol of dialogue’.Footnote 67 Indeed, one should even go further. The Protocol should be seen as an additional integration of the constitutional relationship between national courts and the ECtHR. Requests from the highest national courts for an advisory opinion would thus be an implicit acknowledgment of the relevance of ECtHR views in the national legal system and as an acceptance that the ECtHR – in accordance with the principle of subsidiarity – has the final say about the interpretation of the ECHR. In this sense it is, however, also a reflection of the top-down approach.
National courts may instead, as discussed above, seek to widen their discretion through the quality of their judgments and by applying methods of interpretation developed by the ECtHR. But they may also choose a more active approach – possibly in concert with other national courts – by seeking to influence the Court’s interpretation of the ECHR.
While lower courts may generally try to convince national apex courts about the proper interpretation of national legislation, including of national constitutions, the role of national courts in relation to the ECtHR is of a somewhat different character. Active interaction by national courts would give flesh to the principle of subsidiarity in the sense that national courts would participate in the interpretation of the ECHR as a joint enterprise. In this sense they would go beyond the well-known ‘consistent interpretation’ in the relationship between international obligations and national law. Such a method of interpretation may be termed a ‘transnational constitutional interpretation’. It could even place national courts in the leading role of interpreting the ECHR.Footnote 68 This would represent a ‘bottom up’ approach in line with the principle of subsidiarity.Footnote 69 It could even be a sign of the ‘age of subsidiarity’.Footnote 70
National courts could in this way be transnational mediators between the national and the international legal system in balancing the respective roles of the ECtHR, the national legislature and national courts. This practice should reflect the legitimacy of the ECtHR in exercising competencies delegated by democratic states, while recognising, as the Court has stated, that the national legislature has ‘direct democratic legitimation’. Furthermore, national courts have the responsibility to harmonise rule of law requirements at the international and national level. Finally, they must respect human rights requirements stemming from domestic law as well as from the Convention.
National courts could also mediate between different national legal systems. They may contribute to prospective European standards by applying interpretations that eventually can become acceptable as a European norm. In this way they would combine the pursuit of vertical and horizontal interaction. Active participation in future ECHR interpretations would assumedly benefit both the member states and the system as a whole, by enabling mutual learning in finding the best solutions.Footnote 71 But this requires that national courts are familiar with and respect the methods of interpretation applied by the ECtHR. Secondly, it would require that national courts are sufficiently self-confident. Furthermore, the ECtHR should give guidance and be the ultimate guardian of effective protection of human rights and ensuring consistency as an aspect of the rule of law.
National courts may pursue their view on the proper interpretation of the ECHR by extensive reasoning and perseverance, and hope that the ECtHR will be convinced by their interpretation. But national courts may insist on their interpretation even if the Court is adamant that its interpretation is incorrect. Or, they may claim that their domestic constitution requires a different solution, i.e. relying on the pluralism between the international and national legal system.
One would think that such situations would not as easily occur in the protection of human rights as in the EU context, where the cooperation has a broader substantive scope. Yet also in human rights protection we may find a divergent balancing of different values and interests by the ECtHR and national courts. One prominent example is the disagreement between the ECtHR and the Russian Constitutional Court on the prohibition of prisoners’ voting right in Anchugov and Gladkov (2013).Footnote 72
The Russian Constitutional Court referred to the Russian Constitution both in Anchugov and Gladkov and in the Yukos case (2014).Footnote 73 This is clearly different from the relationship between national constitutional courts and lower national courts, which all belong to the same national legal system. The pluralism between the different legal orders – with the ECtHR being the superior authority at the international level and national courts being superior in their respective orders – means that there is no transnational conflict rule to resolve such incompatibility.
But such conflicts should not be overemphasised. So far, experience has shown that tensions between the ECtHR and national constitutional organs generally have been resolved over time through mutual adaptation. National courts will try to resolve such conflicts through traditional methods of interpretation, in light of the constitutional principles of democracy, the rule of law, human rights, and subsidiarity. Thus, while national courts in exceptional cases may rely on the pluralist character of the international and national legal systems and give prominence to national law, the overall rule would be that the ECtHR and national courts work in a constitutionally harmonised way. It is also interesting to note that even if there are conflicts between the ECtHR and domestic courts on specific issues, such as with the Russian Constitutional Court, the integration may continue in other areas of law. For example, a study has showed that the Russian protection of property rights has improved in light of the ECtHR’s practice, with Yukos being the exception rather than the rule.Footnote 74
VI. Conclusions
The ECtHR and national constitutional organs interact – and should interact – as part of a two-way common legal enterprise, with the ECtHR as the ultimate interpreter of the ECHR. This system should be guided by applicable constitutional principles, i.e. democracy, the rule of law, protection of human rights, and subsidiarity. These principles should be adapted to the pluralist legal setting between the ECtHR and national constitutional organs. This means that the ECtHR should take account of the constitutional roles of national legislatures and national courts. National courts should, on the other hand, acknowledge the roles of the ECtHR and the national legislature. However, the ECtHR and national courts are superior in their respective orders.
The ECtHR applies a margin of appreciation in relation to national constitutional organs, allowing them a certain discretion. But the Court pays – and should pay – particular respect to national courts when it comes to their constitutional role of interpreting national legislation and their expertise in the evaluation of relevant facts. The Court should also allow a wide margin of appreciation to national courts if their judgments are of a high qualitative standard and if they apply the methods of interpretation of the ECHR as developed by the ECtHR. Furthermore, the Court should be open to well-reasoned interpretations of the ECHR by national courts, and even more so if they reflect a consensus among different national courts.
As regards the national legislatures, the Court should acknowledge that they are – in the absence of comparable international democratic organs – the legitimate democratic organs when it comes to domestic policy choices. Their choices, if they are based on genuine democratic processes and respect for the principles embodied in the ECHR as interpreted by the ECtHR, should be given significant weight. This should not detract from the general democratic legitimacy of the ECtHR that stems from ratification of the Convention by member states.
Nonetheless, both in relation to national courts and national legislatures, the ECtHR should protect the rule of law as well as ensuring effective protection of human rights. This means that the Court should ensure equal treatment of member states and legal consistency, but also prevent bad faith implementation of the Convention.
National courts should continue to take account of the practice developed by the ECtHR. But national courts should be more active in their engagement with the Court, including in the proper interpretation of the ECHR. They should act as mediators both between the ECtHR and the national legislature, and between different national systems. This would reflect an application of the principle of subsidiarity adapted to the transnational constitutional setting represented by the interaction between the ECtHR and national constitutional organs. The instances of national courts’ insistence on the primacy of national constitutions based on the plurality of the legal systems should not detract from the general tendency of accommodation between the international and national obligations.
Acknowledgements
This article was supported by the Research Council of Norway through its Centres of Excellence Funding Scheme, project number 223274 PluriCourts – The Legitimacy of the International Judiciary. The author would like to acknowledge the incisive comments from Knut Traisbach and the two anonymous reviewers.
