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The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.

Inhaltsverzeichnis

Frontmatter

Theoretical Framework

Frontmatter

Chapter 1. ‘Principled Resistance’ to ECtHR Judgments: Dogmatic Framework and Conceptual Meaning

Abstract
Resistance of national judges to international court judgments has become more and more frequent and explicit in recent years. This chapter aims to portray the dogmatic framework within which this phenomenon takes place, namely, the principle of supremacy of international law. Beginning with examples from the ICJ and the CJEU, the chapter proceeds to the ECHR framework. Here, the main argument is that there are cases where non-execution is not the result of mere political unwillingness but where there is a legal conflict between the Convention and the national/constitutional identity, leading to a deadlock situation. Those cases are addressed as ‘principled resistance’ cases. The chapter concludes by giving reasons for scrutinizing certain countries and omitting others in the country reports section.
Marten Breuer

Chapter 2. Resistance to the European Court of Human Rights: The Institutional and Sociological Consequences of Principled Resistance

Abstract
The European Court of Human Rights (ECtHR/Court) has from time to time has faced resistance. This critique has come from a host of actors in the Member States, ranging from the highest courts to politicians, academics and individual lawyers. Even public opinion has also voiced critique of the Court. Resistance to the ECtHR is however neither new nor unique. From the Greek exodus from the European Convention system in the late 1960s, over the British critique under Prime Minister Thatcher during the 1980s to current Strasbourg bashing, criticism of the Court has been a recurrent phenomenon. But how do we make sense of these different and scattered examples of resistance across different Member States without lumping together all kinds of critique under the header of backlash? Engaging with the notion of principled resistance developed by Marten Breuer, this paper explores the sociological dimensions of resistance to international courts. Using this more sociological approach, the chapter suggests that what in practice ends up as principled resistance to the ECtHR does not necessarily involve higher order normative clashes in a legal sense. Instead, what in practice can be observed is how small scale conflicts over ordinary legal provisions and practices can escalate into principled disagreement with serious implications for an international court such as the ECtHR.
Mikael Rask Madsen

National Perspectives

Frontmatter

Chapter 3. Principled Resistance to and Principled Compliance with ECtHR Judgments in Germany

Abstract
The article shows that the legal practice of German courts is, in principle, shaped by principled compliance with the ECHR and with the jurisprudence of the ECtHR. Instances of—mostly temporary—principled resistance can, however, be witnessed: On the one hand, the Federal Constitutional Court has developed its jurisprudence on constitutional limits of compliance with ECtHR judgments under the Basic Law. Both the Federal Constitutional Court’s approach in general and its implementation through different patterns of explicit principled resistance in practice are analysed and discussed in the article. On the other hand, patterns of implicit resistance to ECtHR judgments by German courts are identified: Sometimes, instead of expounding why a certain ECtHR judgment cannot be implemented in the domestic order the courts evade the statement of a conflict, but they act in a way that results in principled resistance. The article concludes that, predominantly, principled resistance goes back to the statutory rank of the Convention in the German legal order. The Federal Constitutional Court’s jurisprudence has mitigated its consequences and increased compliance by granting the Convention and the ECtHR’s jurisprudence a limited de facto constitutional rank, while at the same time underlining the ‘last word of the German Constitution’. Regarding its consequences in practice, this approach is better than its reputation. A hard rather than a soft enhancement of the Convention’s rank in the domestic order would, however, minimise the cause for conflict.
Heiko Sauer

Chapter 4. ‘Principled Resistance’ to ECtHR Judgments in Austria

Abstract
The Austrian legal order is profoundly influenced by the European Convention on Human Rights and the case law of the European Court of Human Rights. The constitutional rank of the Convention as a special feature of the Austrian legal order certainly leads to a particularly intense consideration of the ECtHR case law by Austrian courts. Whereas the courts at the beginning had difficulties in applying the new catalogue of fundamental rights, which resulted in reluctance and narrow interpretation, the Convention and the ECtHR case law are nowadays an integral part of the Austrian system of fundamental rights. Despite a high level of loyalty which appears to be the rule, there are or have been a few examples of divergence between the Austrian Constitutional Court and the ECtHR that could be called ‘resistance’ to the case law of the ECtHR in the meaning of this volume. They have been of a more or less principled kind. The Constitutional Court referred to different features of the domestic situation in Austria, of a legal nature on the one hand and of a factual nature on the other hand, that hindered it to fully comply with the case law of the ECtHR. Taking into consideration these examples, the chapter tends to draw a conclusion about the specific character of the Austrian approach towards the ECtHR and its case law that could be summarised by the term ‘critical loyalty’.
Anna Katharina Struth

Chapter 5. Judicial Disobedience and the ECtHR: The Italian Case

Abstract
In this chapter I shall explore the techniques employed by the Italian Constitutional Court to disobey the case law of the ECtHR. When looking at these cases my argument is that they should be seen as a natural consequence of the constitutional openness of the Italian Constitutional Court’s case law, rather than as a symptom of constitutional closure. This chapter is structured as follows: in a first moment I shall present the constitutional background and recall the essence of the so called ‘twin judgments’ (348 and 349/2007) of the Italian Constitutional Court. In a second moment, I shall analyse the most important techniques of disobedience devised by the Italian Constitutional Court. Finally, I shall present some final remarks, trying to contextualise these national episodes of resistance in a broader comparative context.
Giuseppe Martinico

Chapter 6. Resistance in Switzerland: Populist Rather Than Principled

Abstract
This chapter provides an overview of the resistance to the ECtHR as it has appeared in Switzerland’s Federal Supreme Court, academia, and politics. It shows that, although harsh criticism has been expressed by judges, academics, and politicians, neither the executive, legislative, or judicial branch nor scholarship has taken a principally adverse attitude towards the ECHR system. However, Switzerland’s national conservative party, the Swiss People’s Party, currently the country’s largest political force, recently attempted to significantly cut back on the ECHR’s influence on the Swiss legal and political order. This proposal, which even could have forced Switzerland to withdraw from the ECHR, was clearly rejected by popular vote. The campaign showed that, while potential for far-reaching backlash against the ECtHR exists in Switzerland, there is an even broader alliance of staunch supporters of the European human rights system.
Helen Keller, Reto Walther

Chapter 7. Principled Criticism and a Warning from the ‘UK’ to the ECtHR?

Abstract
The ‘UK’ has been a major critic of the ECtHR over recent years, and especially since 2009. This chapter provides a unique analysis and assessment of the criticism, and, importantly, the constitutional context that forms the backdrop to it. It distinguishes between bad faith, political criticism of the ECtHR, and other more measured criticism of the ECtHR emanating from the ‘UK’ which, in effect, called for more self-restraint from the Court (and which should not be readily dismissed as ‘Strasbourg bashing’ or ‘anti-Strasbourg’). As to the latter, the chapter argues that, taken overall, aspects of the UK criticism could be considered ‘principled’, and that its general effect was such that it may be said that a ‘principled warning’ was issued by the ‘UK’ to the ECtHR over the 2010s. It proceeds to argue that the evolved nature of UK-Strasbourg judicial relations constitutes an adequate and proportionate response to the criticism and the warning, highlighting how the senior UK judiciary is, especially post-2015, far more robust in its interactions with Strasbourg than it once was. The chapter concludes by reflecting on these developments, in terms of what they may mean for human rights protection in the UK under the Human Rights Act 1998, as well the dangers to guard against for Strasbourg.
Ed Bates

Chapter 8. The Execution of ECtHR Judgements and the ‘Right to Object’ of the Russian Constitutional Court

Abstract
In 1998 Russia ratified the European Convention on Human Rights (ECHR) and subjected itself to the jurisdiction of the European Court of Human Rights (ECtHR). After a long phase of productive cooperation with the ECtHR, Russian elites started realizing that further transplantation of human rights norms and unconditional execution of ECtHR judgments may lead to dangerous and undesirable results, such as questioning of legitimacy of the current social and political order in Russia, excessive ‘Westernization’ of social and legal norms, serious conflicts with prevailing conservative, traditional values in the Russian society. In this context, the creation of a protective mechanism against the Strasbourg Court allowing Russian authorities to block or limit the legal effect of its judgments does not look surprising. Such mechanism was introduced in 2013–2015 and has already been tested several times. The Russian model of such ‘blocking mechanism’ prescribes a central role of the Constitutional Court, which acts like a ‘guardian’ of the Constitution and an ‘active legislator’ ruling on the possibility and exact manner of enforcement of a given ECtHR judgment on behalf of the Russian Federation upon requests from courts and other State bodies. Under this model any judgment of the ECtHR can be declared by the Russian Constitutional Court non-enforceable in Russia if the following two conditions are met: (1) The ECtHR judgment is in contradiction with the Russian Constitution and (2) there are no alternative ways to avoid the conflict with constitutional provisions other than its non-enforcement. The Russian Constitutional Court insists that it has a ‘right to object’, which may be derived from the Russian Constitution and general principles of international law based on consent of States.
Vladislav Starzhenetskiy

International Perspectives

Frontmatter

Chapter 9. The Perspective of the Venice Commission

Abstract
In this contribution the work of the European Commission for Democracy through Law—better known as the Venice Commission—is discussed. While the Venice Commission has had few possibilities to examine the relationship between a domestic legal order and the jurisdiction of the European Court of Human Rights, an opportunity arose when the Venice Commission was asked to deliver an opinion on the 2015 amendments to the Constitutional Law on the Constitutional Court of the Russian Federation. This chapter will give a brief description of the Russian law concerned, of the opinion adopted by the Venice Commission, and of some subsequent developments in the practice of the Russian Constitutional Court after the adoption of the Venice Commission’s opinion. This contribution will conclude by addressing some of the possible underlying reasons why the supremacy doctrine under international law (and Article 46 ECHR more specifically) is under attack by ‘constitutional law exceptions’ and ‘national identity’ arguments.
Martin Kuijer

Chapter 10. The National Identity Criterion in the Crossfire Between European Integration and the Preservation of National Sovereignty

Abstract
The national identity criterion has not only come up within the frame of the ECHR but also in the context of the European Union where resistance by national constitutional courts to the decisions of the CJEU is becoming more and more apparent. Yet, while the ECtHR was created as an international court to externally monitor the observance of human rights in its Contracting States without having own political or sovereign power, the starting position in relation to the EU is different. The EU system of fundamental rights protection is an integral part of the rule of law within the EU and thus closer to the system of fundamental rights protection of an EU Member State than to that provided for by the ECHR. Furthermore, the autonomous nature of EU law, which is repeatedly emphasised by the CJEU, necessarily requires coherence, consistence, unity, and effectiveness in its Member States. Although the principle of primacy affects only the applicability of the conflicting national provision and not its validity, Member States cannot get away with non-compliance. Therefore, the struggle in confrontation and cooperation between national constitutional courts and the CJEU is, also with regard to the national identity criterion, somehow sharper than the one between the national constitutional courts and the ECtHR.
Stefanie Schmahl

Chapter 11. ‘Principled Resistance’ to ECtHR Judgments: An Appraisal

Abstract
The chapter analyses the national practice apparent from previous chapters, claiming that not each and every disagreement by a national actor amounts to ‘principled resistance’. It is submitted that the difference between res judicata and res interpretata is pivotal in this regard. In most cases, the way in which disagreement with the ECtHR is expressed is far more important than the disagreement as such (hence the claim for ‘respectful disobedience’). Finally, the chapter aims to identify the root causes of ‘principled resistance’. It argues that neither the hierarchical position of the Convention under national law nor the purported ‘national identity’ are sufficient to explain the phenomenon. Rather, ‘principled resistance’ cases should be viewed as a struggle about the proper allocation of power in the relationship between Strasbourg and the national level.
Marten Breuer

Backmatter

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