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Published online by Cambridge University Press: 15 April 2021
This short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.
1 For a critical assessment of this function, see in this issue J Waldron, ‘The Rule of Law and the Role of Courts’ (2021) 10 Global Constitutionalism 91–105; and BZ Tamanaha, ‘Always Imperfectly Achieved Rule of Law: Comments on Jeremy Waldron’ (2021) 10 Global Constitutionalism 106–117.
2 I deliberately focus on this indicium of constitutionalism which seems to me to be the strongest of all. Of course, various courts around the world may also be deemed ‘constitutional’ on many other grounds, including that they are apex courts in the appellate chain of judicial decision-making, and the ECtHR meets this criterion easily, as a special ‘super-appellate’ court.
3 For a detailed discussion of pilot judgments, see Sadurski, W, ‘Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’ (2009) 9 Human Rights Law Review 397.CrossRefGoogle Scholar
4 Greer, S and Wildhaber, L, ‘Revisiting the Debate about “Constitutionalising” the European Court of Human Rights’ (2012) 12 Human Rights Law Review 655, 671.CrossRefGoogle Scholar
5 Admittedly, there is a certain oversimplification in this proposition, in order to make my point sharper. Surely, after the horrors of the Second World War the possibility that in one or more European states systemic failures may occur must have weighed on the Founders’ minds. But at the time of setting up the system they all considered themselves as easily meeting some basic liberal-democratic baseline.
6 Marckx v Belgium, Judgment, ECtHR App No 6833/74 (13 June 1979), dissenting opinion of Judge Sir Gerald Fitzmaurice, para 28.
7 For the impact of the enlargement of the ECHR system on the constitutionalisation of the Court, see Sadurski, W, Constitutionalism and the Enlargement of Europe (Oxford University Press, Oxford, 2012) Ch 1.CrossRefGoogle Scholar
8 CoE Committee of Ministers, Resolution CM/Res (2004)3 of 12 May 2004 on judgments revealing an underlying systemic problem; see also CoE Committee of Ministers, Recommendation CM/Rec(2004)6 of 12 May 2004 on the improvement of domestic remedies, which points out that, in addition to individual remedies, states have a general obligation to solve the problems underlying rights violations.
9 Markus Fyrnys made the connection between ‘pilot judgments’ and the constitutional function of the Court explicit: ‘The very fact that pilot judgments are focused on the identification of systemic malfunctioning of the domestic legal order … normatively extends the binding effect of the Court’s judgments and changes their legal nature, accentuating the Court’s constitutional function’; see M Fyrnys, ‘Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights’ in von Bogdandy, A and Venzke, I (eds), International Judicial Lawmaking (Springer, Berlin and Heidelberg, 2012) 329, 331.CrossRefGoogle Scholar
10 Broniowski v Poland, Judgment, ECtHR App No 31443/96 (22 June 2004) para 193.
11 The figures of potentially similar cases supplied in Broniowski and Hutten-Czapska seem quite fantastic, see Sadurski (n 2) 422, fn 76.
12 Hutten Czapska v Poland, Judgment, ECtHR App No 35014/97 (19 June 2006), partly dissenting opinion of Judge Zagrebelsky.
13 Ibid.
14 Hutten Czapska v Poland (n 12) partly concurring, partly dissenting opinion of Judge Zupancic, part II (both emphases added).
15 Ibid.
16 The concept of ‘semi-pilot’ (or, as they are sometimes called, ‘quasi-pilot’) judgments applies to those judgments which place the ‘systemic violation’ or ‘systemic problem’ language only in its reasoning on the merits, but not in the operative parts; in such cases, the Court does not expressly describe the judgment as a ‘pilot judgment’.
17 Lukenda v Slovenia, Judgment, ECtHR App No 23032/02 (6 October 2005, final 6 January 2006), partly dissenting opinion of Judge Zagrebelsky.
18 See European Court of Human Rights, ‘Seminar Background Paper – Implementation of the Judgments of the European Court of Human Rights: A Shared Judicial Responsibility?’ 5 (footnote omitted) <http://www.echr.coe.int/Documents/Seminar_background_paper_2014_ENG.pdf>.
19 For the concept of ‘embeddedness’ of supranational institutions in national legal orders, see Keohane, RO, Moravcsik, A and Slaughter, A-M, ‘Legalized Dispute Resolution: Interstate and Transnational’ (2000) 54 International Organization 457, 458.CrossRefGoogle Scholar
20 I am grateful to an anonymous reviewer for focusing my attention on this point.
21 For a good discussion of different meanings of ‘autonomy’ of international organisations, see Peters, A, ‘The Constitutionalisation of International Organisations’ in Walker, N, Shaw, J and Tierney, S (eds), Europe’s Constitutional Mosaic (Hart, Oxford, 2011) 253, 257–61.Google Scholar
22 Airey v Ireland, Judgment, ECtHR App No 6289/73 (9 October 1979) para 24.
23 On the link between the doctrine of effectiveness and the finding of positive obligations, see van Dijk, P and van Hoof, GJH, Theory and Practice of the European Convention on Human Rights (3rd edn, Kluwer Law International, The Hague, 1998) 75.Google Scholar
24 For a discussion of this point, see Letsas, G, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, Oxford, 2007) 37–57.CrossRefGoogle Scholar
25 See, e.g., Matthews v United Kingdom, Judgment, ECtHR App No 24833/94 (18 February 1999) para 39.
26 Zwart, T, ‘More Human Rights Than Court: Why the Legitimacy of the European Court of Human Rights Is in Need of Repair and How It Can Be Done’ in Flogaitis, S, Zwart, T and Fraser, J (eds), The European Court of Human Rights and Its Discontents: Turning Criticism to Strength (Edward Elgar, Cheltenham, 2013) 71, 87–8.Google Scholar
27 Sadurski, W, ‘Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities’ (2015) 4 Global Constitutionalism 396. See alsoCrossRefGoogle Scholar Sadurski, W, ‘Conceptions of Public Reason in the Supranational Sphere and Legitimacy beyond Borders’ in Sadurski, W, Sevel, M and Walton, K (eds), Legitimacy: The State and Beyond (Oxford University Press, Oxford, 2019) 161.CrossRefGoogle Scholar
28 Buchanan, A, ‘Human Rights and the Legitimacy of the International Order’ (2008) 14 Legal Theory 39, 63.CrossRefGoogle Scholar
29 von Bogdandy, A and Venzke, I, ‘On the Democratic Legitimation of International Judicial Lawmaking’ (2011) 12 German Law Journal 1341, 1344.CrossRefGoogle Scholar
