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Title
The Rule of Law and the European Human Rights Regime
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https://escholarship.org/uc/item/2q59x006
Authors
Goldstein, Leslie
Ban, Cornel
Publication Date
2003-07-01
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TO APPEAR IN
Contending Perspectives on Global Governance: Coherence, Contestation, and World Order,
ed. Matt Hoffman and Alice Ba, forthcoming 2004.
THE RULE OF LAW AND THE EUROPEAN HUMAN RIGHTS REGIME
by Leslie Friedman Goldstein and Cornel Ban
Department of Political Science and International Relations, University of Delaware
Preface (and Conclusion)
Many of the chapters in this collection see “global governance” as a reference to the way
the globe as a whole global system is governed -- in other words, as the way that so-called
“international,” or inter-state systems are ordered the world over. This chapter, by contrast, fits
into that group of the chapters (which includes those by Rosenau, Young, and O’Brien) that see
“global governance” as about saying and seeing that governance takes place on the globe to
an increasing degree (not only by state and interstate actors, but also) by suprastate, non-state,
and substate actors. This chapter in particular examines the strengthening of one of these
“disaggregated spheres of authority” (in the phrase of James Rosenau), one of the arenas
where modes of regulating human behavior that were previously monopolized by state
sovereigns has been taken over by a trans-state actor, the European Court of Human Rights.
We see the “structure” of global governance as in fact an absence of structure among
these disaggregated spheres, and the process of global governance as varying from one to
another sphere. Within traditional international organizations, governance is exercised with the
range of traditional tools of international relations, although these tools are now often wielded
by a number of non-traditional agents, such as NGOs. In addition, trans-state regimes of
governance have moved recently into prominence: some, in the realm of political economy
(e.g., those of the World Bank and the IMF); others, in the realm of trans-state law, enforced by
trans-state courts.
1
This chapter zeroes in on one of the latter, in order to address a question posed in the
chapter by Oran Young: What, in a trans-state regime, makes for regime effectiveness?
Specifically, by what processes do trans-state legal regimes manage to take hold? (We do not
address in this chapter the prior question why such trans-state judicial governance regimes get
put into place at all; a large literature on this subject has already accumulated: Moravscik 2000
and citations in Goldstein 2001, Ch.6).
The vantage point from which we examine the growth and entrenchment of this trans-state
regime is that of public law. This chapter focuses on a single trans-state, rule-of-law regime, one
implemented by a mix of trans-state actors of the Council of Europe and domestic political and
legal institutions, all of whom are charged with making and enforcing law.
Our perspective on this particular piece of global governance, and others like it -- i.e., those
regimes constructed and governed by transnational courts, the norms legitimating them and the
norms they propound, and the actors and institutions that implement these norms – changed in
the course of researching and writing this chapter. We began persuaded by the thesis of
various scholars in international relations (hereafter IR) that the areas where these trans-state
judicial regimes most successfully manage to take hold and to alter the behavior of erstwhile
sovereign states are those states where domestic culture already exhibits a well-entrenched
commitment to the rule of law. In other words, we saw domestic culture at the society-wide
level as decisive in shaping the receptivity of a given state to subordinating itself to governance
by one of the trans-state judiciaries that have been proliferating and growing in strength around
the turn of the twenty-first century.
The research in this chapter changed our viewpoint. We now believe that a multiplicity of
causal variables shape the likelihood of regime effectiveness in these judicially dominated transstate regimes: The degree of rule-of-law culture is important, but its impact can be trumped or
blunted by such phenomena as strong political leadership (as it was in our study, on the part of
judges on constitutional courts as well as in domestic executive branches and legislatures) or by
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political forces exogenous to the judicial systems (such as, in our study, trans-state political
mood, at least among elected member-state leaders during the mid- to late-1980s).
1. Introduction
The European Court of Human Rights (hereafter ECtHR or the Court, or “Strasbourg,” its
home) was founded in 1959 within the structure of the Council of Europe (COE), a group of
European countries committed to the protection of human rights (originally, Belgium, Denmark,
France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom).
The ECtHR was to function as interpreter of the 1953 European Convention of Human Rights
(hereafter ECHR or the Convention). The Convention regime began designedly gradually, with
a cumbersome enforcement system, many opt-out possibilities on particular rights, and an
enforcing court that met only temporarily. (In the states that chose to accept the right of
individual petition, individuals could file complaints against the High Contracting Parties for
alleged human rights violations. Inter-state complaints were also permitted against any member
state. The complaints were first reviewed for admissibility by the Commission, a quasi-judicial
body, and if no friendly settlement occurred, the Commission would issue a report stating the
facts of the case and its opinion on the merits and send it to the Committee of Ministers. Then,
the Commission and/or any contracting state concerned had the right to bring the case before
the Court for final adjudication within three months following the transmission of the report to the
Committee of Ministers. If the case were not referred to the ECtHR, the Committee of Ministers
could decide whether there had been a violation of the human rights protected by the
Convention. If the Committee found a violation, it would oblige the state to pay compensation
to the victim of that violation. If the ECtHR did handle the case, its decision was final. The
Committee had the responsibility of monitoring the execution of the ECtHR’s judgment. The
Council of Europe dramatically strengthened this enforcement system in the 1990s, as explained
below. As of 2003, the American Convention on Human Rights, for the Organization of
American States, another trans-state regime, operates in much the same format as the early
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ECHR.) Not until the early 1970s did the ECtHR begin to issue decisions with real teeth in them—
i.e., decisions that produced prompt policy corrections by offending governments (e.g., De
Wilde, Ooms and Versyp v. Belgium, judgment 18 June 1971--legal reform on 6 Aug. 1971;
Ringeisen v. Austria, judgment 16 July 1971—prompt reversal by Constitutional Court; Golder v.
the United Kingdom, judgment 21 Feb. 1975– reform on 22 June 1976).
By the end of 1998, however, the ECtHR became a permanent court and the right of
individuals to petition the court for violations, which had not even existed until 1994, now
became mandatory on all COE member countries. (The steps of change were as follows:
Protocol 9, 1994, enabled individual applicants to bring their cases directly to the Court subject
to agreement to this system by the respondent State and also to acceptance of the case by a
Screening Panel. Protocol No. 11, effective in November 1998, replaced the Commission with
what was now a permanent ECtHR. Now the obligation to permit individual citizens to take
human rights complaints to this court became mandatory for all signatories to the Convention;
no longer could states opt out. www.echr.coe.int ). Thus the ECtHR became an effective codirector of the ECHR legal regime, in unofficial partnership with the European Court of Justice
(hereafter ECJ), the court of the European Union whose own doctrine obliges it to honor the
ECHR whenever the Convention is relevant.
By applying a blend of IR approaches with public law analyses, as recommended in recent
years by a number of influential IR and international law scholars of differing theoretical
approaches (Abbot 1989; Koskenniemi 1990; Slaughter 1993; Finnemore 1996; Koh 1997; RessSmit 1997; Keohane 1997 and 2000; Slaughter et al. 1998; Byers 2000), this paper examines the
extent to which rules derived from this Convention have become embedded in the domestic
legal order of the member states. We view the set of rules and the organizational structure
created around the Convention as a transnational legal regime, one grounded in postEnlightenment European culture. Although that culture had obviously been scarred by World
War II and the circumstances that led to it,1 the Preamble of the Convention nonetheless
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explicitly identified its own foundation as the “spiritual and moral values which are the common
heritage of the European people and the true source of individual freedom, political liberty and
the rule-of-law principles that form the basis of all genuine democracy” (Emphasis added.
www.coe.int).
Within the IR literature, a commonly cited definition of international regimes is that of
Stephen Krasner: they are sets of issue-bounded “implicit or explicit principles, norms, rules and
decision-making procedures around which actors’ expectations converge” (1983, 2). (E.g., One
of the guiding principles of the ECHR regime as articulated by the ECtHR is the doctrine of a
“national margin of appreciation”; it states that the preeminence of a given Convention norm
must be weighed against national interests and restricted to the degree “necessary in a
democratic society,” Lawless v. Ireland, ECtHR 1981. The analytic framework of an international
regime reaches beyond the traditional international law studies of the ECtHR that confine their
research focus to its legal doctrine (e.g. Delmas-Marty 1992; Clements et al. 1999; Yourow 1996).
This paper views the Convention and the Court as part of the broader European human rights
regime, which includes other organizations with which the Court cooperates closely (the
Committee of Ministers) or loosely (the European Court of Justice, the European Commission2).
This approach provides a more complete picture of the forces at work in creating a rule of law
for Europe than would be available through merely doctrinal analysis.
We label the ECHR regime (i.e., the regime created around the Convention and the Court)
transnational rather than international because its rules, norms and procedures are not confined
to interstate interaction. For instance, the parties to the Convention commit to a variety of due
process measures in Article 5, which list concludes with following:
Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and the charge against him. Everyone
arrested or detained in accordance with the provisions of paragraph 1(c) of this
article shall be brought promptly before a judge or other officer authorized by
5
law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by guarantees to
appear for trial. Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not lawful.
Everyone who has been the victim of arrest or detention in contravention of the
provisions of this article shall have an enforceable right to compensation.
(Emphasis added.)
Thus, these states pre-commit themselves to allow third party transnational institutions to hold
their otherwise sovereign institutions liable for compensatory damages, to that degree
abrogating sovereign prerogatives. Clearly, the hierarchical arrangement of the combined
force of the Committee of Ministers and the ECtHR vis à vis the domestic courts that implement
the ECtHR rulings differs qualitatively from the sheer intergovernmentalism that typifies purely
international institutions. Instead the ECHR regime structures not simply state-to-state relations
but multiple patterns of interaction—those between individuals and the state, between
elements of civil society and state, between domestic courts and national political
constituencies, between the EU and individual states, and between the ECtHR/Committee of
Ministers and each of the aforementioned categories. The Convention is operationalized
primarily thorough the medium of domestic law and courts (de Bruyn et al. 1997, 2-6), and few
aspects of domestic policymaking pertaining to human rights evade the reach of the
Convention and its protocols. Within the ECHR regime, states routinely act upon these limitations
of their own sovereignty by consciously shaping their policies into patterns adapted to ECtHR
jurisprudence.
Significantly, this is a rule-of-law regime in the sense that it gives life via the provisions of the
Convention to the principle that the relationships of the individual with the state should be
regulated by a framework of legal rules whose interpretation and application are in the hands of
6
independent judges and are to be applied even-handedly (Merrills 1993). This principle is
implicated not only in the obvious cases of the provisions of Article 5 (right to liberty), Article 6
(right to a fair trial) and Article 7 (no retrospective criminal laws) but by all other provisions of the
Convention and of its 11 additional protocols.
This transnational regime has enlarged its jurisdiction in two successive waves of integration.
The first enlargement took place in the 1970s and moved southward. It included Spain (a
dictatorship from 1936 to 1975) and Portugal (a dictatorship from 1933 to 1974)-- both initially
excluded from the European Community due to their period of fascist rule—who signed the
Convention on the day of their accession to the Council of Europe, on November 24, 1977 and
September 22, 1976, respectively. The same wave included Greece, at the time, recently
plagued by periods of instability and dictatorship. (Greece had signed onto the Convention in
1950, but did not ratify it and then withdrew in 1969, giving it practical effect only in 1974.)3 (This
expansion also included Malta, 1967, Cyprus, 1962, and Switzerland, 1974. We chose Greece,
Spain and Portugal not only because they are bigger countries than Malta and Cyprus, but also
because they represented interesting transitions from dictatorial to rule-of-law regimes.)
The second enlargement took place in the 1990s, when all former communist states,
including Russia, were admitted to the Council of Europe. After fifty to seventy years of blatant
disregard for the values professed by the Convention, particularly for the rule of law, these
countries formally adopted an alternative political and legal paradigm for the protection of
human rights. The number of Council of Europe members grew from 23 at the end of 1989 to 43
in 2001, and the total population of the member states grew from 451 to 772 million. The number
of applications to the Court grew from 1,013 in 1988 to 10,486 (Report 2001, 4.) Since 2001, three
new countries have signed on to the ECHR: Bosnia, Armenia, and Azerbaijan. These
enlargements expanded the democratic Western European normative core to 800 million
people living under legal regimes of remarkable heterogeneity.
Despite the variegated mosaic of democratic and legal traditions amassed under the aegis
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of the Council of Europe, however, the ECHR regime by the late nineties was being acclaimed
as a strikingly successful transnational framework for the protection of fundamental human rights
and liberties (Gearty 1997, x-xv). Its very success raises intriguing questions: What holds it
together? How do the common rule-of-law standards outlined by the European Court of Human
Rights in fact apply to countries as different as England and Romania? Is this regime embedded
uniformly or unevenly in the domestic order of the signatory members of the Convention? If it is
indeed unevenly embedded, what explains the variations? The bulk of ECtHR studies either
describe the Court’s structure, processes and jurisprudence (Merrills 1993; Clements 1999; Yourow
1996; Ralph Beddard 1993); or offer a series of country by country non-analytic descriptive
studies of the reception of ECtHR law (Gardner 1993; Barkhuysen 1999); or do both (DelmasMarty 1992; Tavernier 1996; and Gearty 1997). We have found only two analytic accounts that
attempt to explain patterns of cross-national variation within the ECHR regime (Drzemczewski
1983 and Lembert 1999), and neither of these explores the variable of experience with a rule-oflaw culture
To address these questions, we began with a hypothesis built on two foundations. First, a
growing literature that began in the mid-90s both on general IR theory and specifically on EU
integration points to the importance of rule-of-law-cultures (Seurin 1994, 625-636; Weiler 1994;
Slaughter 1995; Moravscik 1995; Shaw 1996; Alter 1996, 476; Helfer and Slaughter 1997; Goldstein
1996; 1997; and 2001, 158-60). If there is validity in the claims of the EU and IR literature
postulating a connection between liberal, rights-respecting, rule-of-law cultures, on the one
hand, and acceptance of integration into the ECJ and ECtHR legal regimes, on the other, then
we should find longer seniority in the EU (because the latter is an association of liberal, rightsrespecting countries) correlated with more complete embedding of the ECHR regime. (This
hypothesis is not a mere tautology: A strong domestic rule of law culture does not necessarily
imply a willingness to abrogate traditional elements of sovereignty to the degree necessary for
acceptance of trans- or supra-national legal authorities. Indeed the French Supreme
8
Administrative Court, the Conseil d’Etat, for decades insisted that French law meant precisely
that French sovereignty must be retained, and, on this ground, openly resisted claims of authority
from the transnational ECJ [Goldstein 2001; Alter 2001, 158-59].) Secondly, the very fact of
membership in the EEC/EC/EU has entailed involvement with political and legal processes that
for half a century have been entrenching principles of legitimacy that transfer sovereign power
to supranational institutions. One can plausibly assume that such involvement over time would
strengthen a member state's transnational commitment to a European legal identity, one that
includes protection for fundamental rights.
Both these observations support an expectation that the countries with longest tenure in the
EEC->EU system would be the ones that more fully embedded the ECHR regime into their
domestic legal system. If our hypothesis is borne out, we still will not know if rule-of-law culture
per se is the primary causal variable, due to its co-variance with length of EU tenure. Still, we will
have unearthed some initial support for the rule of law thesis.
In order to test this hypothesis, we divided our cases into three categories, as follows:
(1) Core EU member states-- France, Germany, and the Netherlands. These states have a long
rule-of-law tradition, albeit one punctuated in the case of Germany (and its fellow core member
Italy) by their Fascist/Nazi periods and a lengthy experience with supranational legal/political
institutions. (2) States that became EU members in the 1980s--Portugal, Greece, and Spain.
These states experienced decades-long discontinuities in the rule of law and missed the
formative period of early European Community membership. (3) Members of the Council of
Europe from outside Western Europe (i.e. states of the former Soviet bloc)–Romania. When they
joined the Council of Europe in the early 1990s, these countries had endured fifty years of
totalitarian political abuses and an abysmal record of rule-of-law performance. Romania joined
the Council of Europe in 1993, ratified the Convention in June 1994, submitted its application for
EU membership in June 1995, and began EU accession negotiations on February 15, 2000.
We initially had also included in our study an example of a former Soviet Republic (as
9
distinguished from Soviet bloc member), Moldova (Ban and Goldstein 2002). Its soviet-style
institutions have been largely preserved since independence (1991), even though it joined the
Council of Europe in 1995 and ratified the Convention in 1997. Further reflection caused us to
eliminate all of the former Soviet republics from the scope of our study, although our hypothesis
should apply to the other Soviet bloc (as distinguished from Soviet Union) countries that are in
the Council of Europe and to the Baltic Republics. The reason we segregated the cases in this
way is our perception that the ECtHR for a time was apparently applying a double standard with
respect to former Soviet republics, most notoriously Russia: For a long time the Court accepted
no cases that presented claims of violations of human rights in these countries, evidently
attempting to give these fledgling rule-of-law regimes extra time to adapt to Western rule-of-law
standards. Because the standard applied by the ECtHR to such countries is markedly easier to
attain than the standard applied to the more Western member states, there is not yet a viable
way to measure "integration" of the former into the ECtHR regime. In effect, the Court seems to
have granted them some sort of de facto apprenticeship period. In 2000, for instance, the
ECtHR registered 1,323 applications to hear cases (i.e., claims of human rights abuses) against
Russia. It accepted none that year. By August 2002, in contrast, the ECtHR has issued two
condemnations of Russia. For comparison purposes, the year 2000 figures for Romania are 31
out of 639 cases accepted; France, 80 out of 870 (www.echr.coe.int ). If our inference from this
data is correct, then it would seem that the ECtHR itself is operating, at least as to its treatment of
Russia, on the very assumption we are testing in this paper (viz., that countries accustomed to
the rule of law will more readily than others accept the transnational authority of the ECtHR.).
Having selected examples from each of these categories, we then compared both the rate
and the thoroughness with which each of them accepted ECHR norms into their own legal
systems as constraints on their own sovereignty. Our expectation was that the acceptance of
the ECHR legal regime would be deepest and broadest in the core EU states, with more recent
EU states and applicant states following in that order.
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The structure of the argument to follow looks first, in Section 2, at the constitutionalization of
the ECHR regime by examining (1) ECHR compatibility with texts of national constitutions and (2)
the reception of the ECHR regime by specialized constitutional courts in those countries that
have such courts. (In the majority of the countries we examined, a single court monopolizes this
jurisdiction. Exceptions are noted below.) This section examines the primacy of the Convention
over domestic law by surveying the degree of coherence between the treaty’s treatment in
constitutional text and in constitutional court doctrine. National constitutional law is our first
measure of the embeddedness of the Convention.
Section 3 then examines implementation of ECtHR doctrine by the rest of judiciary (looking
beyond the specifically constitutional courts) in each of the countries of our study. In section 4,
we focus on the question of implementation of ECtHR decisions by the legislative and executive
branches of the member states. Section 5 will present our conclusions.
2. Constitutional Status of the ECHR Regime
As a preface to the analysis here, we point out two elements of European legal context.
First, the ECtHR treats not only the text of the Convention but also its own doctrinal output as
“the law of the Convention” (Handyside v. UK, ECtHR 1976; Modinos v. Cyprus, 22 April 1993;
Dudgeon v. United Kingdom, 22 Oct. 1981; Norris v. Ireland, 26 Oct. 1988; Shapiro and Stone
Sweet 2002, 2). This aspect of ECtHR doctrine merits attention because some national courts
used to claim, and others still do (at considerable expense in treasure and credibility) that they
were/are bound only by the text of the Convention and by those ECtHR decisions in which their
country was a defendant. In support of this argument they cited the language of Article 53 of
the 1950 Convention (renumbered in 1998 to become Art.46), which specifically mentions only
an obligation of parties to the Convention to obey the ECtHR decision “in any case to which
they are parties.” Their behavior openly ignores the ECtHR’s custom of prefacing its examination
of the facts with a summary of the interpretation it gave to specific relevant cases in previous
decisions; by 1993, the ECtHR was pointedly condemning defendant-states for neglect of prior
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ECtHR cases. One must conclude that certainly by 1993 the ECtHR had explicitly rejected a
narrow interpretation of Article 53, and expected its precedents to be honored.
Second, the Convention and ECtHR jurisprudence, on the one hand, and the ECJ
jurisprudence on human rights, on the other hand, are tightly linked to each other. Early on, the
ECJ referred to the Convention as a fundamental source of Community rights (Rutili v. Ministry of
the Interior 1975). More recently, the (EU) Treaty of Amsterdam (Art.6) and the recentlyadopted EU Charter of Fundamental Rights and Freedoms (Art.47), mandated deference to the
Convention and to the Court. Thus, ECJ practice strengthens norms and rules of the ECHR
regime, already termed by certain scholars, “a part of the cultural self-definition of European
civilization" (Alston and Weiler 1999, 3; Harmsen 2000, 34).
A. The Core States
I. France
The French Constitution of 1958 does not privilege the Convention is as compared to other
international legal instruments. Under Article 55, treaties “prevail” over national laws (but not
over the Constitution). The Conseil Constitutionnel (Constitutional Council) in a famous 1975
decision acknowledged this primacy, in principle (Decision 74-74 of 15 Jan. 1975), but refused
there to review the compatibility of international treaties with national law, grounding its refusal
on its claim that treaty law is “contingent,” as Art. 55 puts it, “subject to its application by the
other party,” thereby declining to enforce the Convention (Steiner 1997; Coccozza 1996, 71415). In a later case that same year the Conseil Constitutionnel refused specifically to review a
French statute legalizing abortion for the compatibility with the Convention (Art.2) provision
protecting the right to life of every human person. Here the Conseil said simply that its jurisdiction
was limited to clashes between the Constitution and statutes, that treaty interpretation was not
part of its purview, and the judges ruled the statute constitutional (Cons. Const., 23 July 1975,
Decis. 75-56; Troper 2003, 42).
What happened next is that France’s supreme appellate court for ordinary law, the
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Cour de Cassation, picked up the ball. In 1975, shortly after the abortion decision this court
starting striking down French laws that conflicted with the treaty law of the European
Community. From this action evolved the doctrine that all French courts have the duty to strike
down a statute that conflicts with treaty law –“convention-based” judicial review (Troper ibid.).
In 1981 France legislatively accepted the right of individual petition to the ECtHR, and in 1988 the
Secretary-General of the Conseil Constitutionnel, Bruno Genevois, admitted that the Convention
had constitutional value in France and therefore could not be considered as “contingent."
(Genevois 1988; Alter 2001, 158-59). The Conseil Constitutionnel in the late 1980s officially
acknowledged its duty under Article 55 of the Constitution to enforce international law
supremacy over ordinary domestic statutes, in general (Decis. 86-216, 3 Sept. 1986); Decis. 881082/1117, 21 Oct. 1988), and eventually enforced the Convention in particular (e.g., pursuant
to Funke, Crémieux and Miailhe (no. 1) v. France, ECtHR Judgments of 25 Feb. 1993). These
prominent shifts by the Conseil Constitutionnel evidently helped persuade the Conseil d’Etat
(France’s supreme court for administrative law) by 1989 to abandon its earlier prominent hostility
to enforcing international treaties (“Nicolo," Conseil d’ Etat, 5 July 1989 [EC Treaty above French
Law)]; Conseil d’Etat, 21 Dec. 1990, Decis. 283-286 [ECHR above French Law]; Steiner 1997, 280).
Still, the willingness of these high French courts to conform to ECtHR rulings has been largely
limited to cases in which France played a direct role as respondent state. In other words, these
courts have not, as a general matter, treated ECtHR precedents from other countries as creating
rules binding on France.
Despite this incompleteness of judicial implementation, it is fair to say that by the late 1980s
formal constitutional doctrine in France gave the Convention priority over French statute law, if
not over the French Constitution. This was no small change in a country with as strong a tradition
of Parliamentary sovereignty as France had.
II. Germany
In the text of the German Constitution (Art.59) the status of the Convention is lower, in that
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treaties have the same rank as federal statutes. Only general principles of international law and
the German Constitution itself are accorded higher status than domestic statutes. Nonetheless,
in Germany, the ECHR did come to prevail over domestic statutes by way of intervention from
the German Constitutional Court. In 1987, in accordance with the constitutional principle that
the interpretation that conforms to international law must prevail, the powerful German
Constitutional Court (Bundesverfassungsgericht or BVerfG) in effect brought the Convention
regime into German law by deciding that the BVerfG’s interpretation of those Convention rights
that are listed in the German Constitution “must have regard to both the Convention and the
case-law that ensues therefrom” (Decis. of 26 March 1987); Schlette 1996; BVerfG Decis. on
Maastricht Treaty 12 Oct. 1993. Moreover, the BVerfG (officially appointed guarantor of human
rights in Germany by the Constitution) ruled that ordinary German statutes must be interpreted
(wherever possible) as conforming to the ECHR, no matter whether the legislation were prior or
subsequent to the Convention (Voss 1997, 155-56). The BVerfG also created a special appeal
founded on the principle of equal protection before the law, which was to operate whenever
the ECHR was applicable and had been disregarded by ordinary courts (Frowein 1992, 122). This
ruling encouraged the ordinary courts to take care to use the ECHR in order that their judgments
would not be overturned on appeal. In sum, despite a constitutional text that accorded no
special status to the Council of Europe treaty or to the Convention as such, the high
constitutional court of Germany by 1987 elevated the ECHR and it related jurisprudence to
supremacy over German statutes.
It bears attention that this judicial move was roughly contemporaneous both with the
movement in the same direction by the French Conseil Constitutionnel, and with the adoption of
the Single Euorpean Act of 1987 by the European Community (eliminating the veto power of
each member state of the EC over EC policies). The political mood in Western Europe of the
late 1980s (irrespective of differently worded constitutions) seems to have pushed both these
transnational evolutions of legal doctrine.
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III. The Netherlands
Of our seven countries, the Constitution of the Netherlands, most clearly subordinates
national law to the ECHR regime. Article 94 of the Dutch Constitution unequivocally provides
that domestic regulations shall not be applied unless they are in conformity with provisions of
treaties and “resolutions of international institutions” once the latter have been published,
implicitly incorporating the ensemble of ECtHR case-law within this category of “resolutions.” As
early as 1980 the Hoge Raad (Dutch Supreme Court) interpreted Article 94 as establishing (1)
that both the text of the Convention and ECtHR interpretations of it are supreme over not only
national laws, but even over the Dutch Constitution; and (2) that these ECHR rules take “direct
effect” in Dutch law—i.e., no prior Dutch legislative or administrative implementation is required
in order to give them the force of law (judgment of 23 Sept. 1980). The Hoge Raad also
bolstered the status of the Convention by its leadership role: it produced three-fourths of all the
Dutch judicial referrals to the ECtHR (Vervaele 1992, 211-14; Klerk and deJonge 1997).
This Dutch constitutional framework requires all Dutch judges to refuse to apply any
domestic statutory provisions or provisions of the Constitution that conflict with the Convention
(or other international treaty, even though they are not supposed to rule on conflicts between
statutes and the Constitution). Unlike the other countries in our sample, the Dutch do not have
a special constitutional court that monopolizes the power of constitution-based judicial review.
Constitution-based judicial review (in contrast to international-law-based judicial review) is
forbidden in the Dutch Constitution, Art.111 (Klerk and de Jonge 1997, 111-112).
B. Newer EU States
I. Spain
Spain is a paragon of the ECHR regime, the Convention being effectively supreme law on
the basis of the widely presumed intent of the drafters of the 1978 Spanish Constitution to bind
the national protection of human rights to international instruments (Cavagna and Monteiro
1992, 177). Interestingly, Article 10-2, the legal text supporting this interpretation, does not
15
mention specifically either the ECHR and or ECtHR jurisprudence; it reads, “The norms relative to
basic rights and liberties which are recognized by the Constitution shall be interpreted in
conformity with the Universal Declaration of Human Rights and the international treaties and
agreements on those matters ratified by Spain.”
The Spanish Constitutional Court, however, beginning with its first case that posed the issue,
in 1984, has construed Art.10-2 to require itself and all other Spanish courts to follow ECtHR
caselaw; any individual under the jurisdiction of Spanish courts may take a claim to the Spanish
Constitutional Court challenging a statute as unconstitutional on the grounds of conflict with
ECtHR jurisprudence (Constitutional Court: Judgment 114/1984, 29 Nov. 1984; Judgment 25 Oct.
1993; Judgment 259/1994, 3 Oct. 1994; Lembert 1999, 342, 354-55, 357).
Strasbourg case law thereby very quickly became an effective source of Spanish
constitutional law. This occurred slightly in advance of, although roughly contemporaneously,
with moves in the same direction by the constitutional courts of France and Germany.
II. Portugal
By contrast, in Portugal, the reception of the Convention was until the early nineties much
cooler. For one thing, the Portuguese Constitution specifies in its Article 16.2 only one
international treaty in harmony with which domestic statutes and the Constitution must “be
construed”: the Universal Declaration of Human Rights. An attempted constitutional
amendment to add the European Convention failed in 1982, on the purported grounds that it
might have permitted derogation from the constitutional status of fundamental rights by
introducing the “unforeseen restraints” of ECtHR jurisprudence (Cavagna and Monteiro 1992,
171-79).
In contrast to Spain, the Portuguese Constitutional Court for a long time did not actively
promote the Convention as a normative framework for Portuguese domestic courts. Despite its
sole constitutional authority to decide conflicts between domestic law and treaties, this court
classified breaches of a treaty by a domestic statute as matters of “indirect constitutionality,”
16
which classification put them into the jurisdiction of ordinary Portuguese courts, who have
constitution-interpreting (but not direct treaty-interpreting) authority (ibid., 180). Thus, this court
abandoned the opportunity to direct lower court judges’ interpretation of the Convention, even
though the constitutional text constrained its powers no more than the German or Spanish
constitutions restrained the Constitutional Court there.
Until the early nineties Portuguese legal scholars and judges were maintaining that their
country’s Constitution surpassed the Convention in terms of the protection of individual rights
(Leandro 2000). The limitation of this viewpoint, as with that of their German counterparts on
issues other than Article 6.1 of the Convention (see below), is that it construes the Convention as
a (textually) fixed set of rules, when the reality is that of a continuous process of (judicial)
interpretation and expansion of those rules. That is, even judges who heed the text of the
Convention are ignoring rights under that Convention that have been developed by ECtHR
jurisprudence. The clearest evidence of problems with their approach is the fact that both
Germany and Portugal experience yearly condemnations in Strasbourg.
On the other hand, there are signs of change in Portugal, with respect to a recent
turnabout by its Constitutional Court. In 2002 the Constitutional Court issued a lengthy report to
a conference of constitutional courts in Brussels, in which it documented a decade of its own
pro-active leadership in terms of revising Portuguese caselaw to bring it into conformity with the
ECHR. Moreover, this court specifically noted that while the text of the Portuguese Constitution
offers more detailed protection of human rights than does the language of the Convention,
nonetheless the interpretive caselaw of the ECtHR ought to be used to flesh out the meaning of
the correlative rights provisions in the Portuguese Constitution (Constitutional Court of Portugal
2002, 35).
III. Greece
The 1975 republican Constitution of Greece granted to international law and all
international conventions entered by Greece self-executing effect and primacy over “any
17
contrary provision of the law” (Article 28.1). While Greece lacks a specifically “constitutional”
court, the Greek Supreme Administrative Court ruled that the expression “any contrary provision
of the law” is to be construed as placing the ECHR above all domestic law except the
Constitution, and this interpretation is accepted in the other Greek courts (Judgments 4590/1976
and 395/1978, cited in Perrakis 1996, 174).
Control over the validity of domestic laws has several unusual features, the most important
being that under Greek law the ECHR is embedded in two systems of control. The first is the
control for constitutionality: all Greek judges are obliged to assure that domestic laws conform to
the Constitution; every judicial and administrative court is required by the Constitution (Art.87.2)
to refuse to apply any law that violates the Constitution. The second is the control for conformity
with international law. This control empowers all Greek courts to verify whether domestic laws
comply with the ECHR and refuse to apply any domestic law that does not. This situation is
distinct from that over constitutionality because judges are required to explore this question only
if a party to the case raises the issue. The way this dual system plays out in practice is that, unless
a party has raised a question of Convention violation, Greek courts do not refuse to apply laws
that are contrary to the ECHR so long as the court finds them in other respects constitutional
(Bechlivanou 1992; Perrakis 1996). This approach severely constrains the effectiveness of the
Convention in Greece.
Apart from this limitation, a consensus for a long time prevailed among Greek courts and
legal scholars that since the listing of human rights in the Greek Constitution matches that of the
ECHR, their respect is assured by means of control over constitutionality, although one does find
more recent scholarship now asserting the contrary (Bechlivanou 1992, 158; Perrakis 1996, 187).
As in the case with Portugal, it becomes increasingly costly for Greek courts to ignore the law of
ECtHR rulings: The right of individual petition to the ECtHR granted by Greece in 1985 is
producing considerable pressure; in the year 2000, Greece figured high on the list (at no.6) of
states condemned by the ECtHR for violations of the Convention.
18
C. Non-EU Example – EU-applicant, Romania
In Romania the formal status of the ECHR benefits from generous treatment in its
Constitution of 1991 (Art. 11; Art. 20.1): the protection of the human rights listed in the
Constitution is to follow international human rights treaties; should a conflict arise between such
treaty and domestic law (below the Constitution), the treaty prevails (Deleanu 2001). The
Romanian Constitutional Court (hereafter CC) has a monopoly over questions of
constitutionality, including all human rights issues. Ordinary courts are therefore required to refer
the conflict and comply with whatever the CC decides.
Even before Strasbourg first decided a complaint from Romania in 1998, the CC ruled as
early as 1994 (judgment of 14 Dec.) that the ECHR should guide the interpretation of the
Constitution on human rights questions. This independent and active court managed to shape
the practice of ordinary domestic courts, and its decisions, after uneven levels of compliance by
ordinary courts in the early 1990’s, are now treated as binding by all of them (e.g., Curtea de
Apel Bucuresti, s.pen., judgments 311/2000, 1235/2000, and 2768, 26 Nov. 1999).4
Still, the Court’s interpretive stance is marked by a tension. On the one hand, the CC
approaches gaps in the Romanian Constitution on due process as opportunities to enlarge the
impact of the ECHR. Thus, in a 2000 landmark decision (CC judgment 146, 14 July 2000), the
Constitutional Court rejected the interpretation of the executive branch that a rule of criminal
procedure is constitutional so long as the human right invoked to challenge it (here, reasonable
length of criminal proceedings) is not explicitly forbidden in the Constitution. The Court ruled
that if a right is protected by the ECHR, since the Convention must be effective in Romanian law,
any domestic norm infringing the right is unconstitutional.
On the other hand, in matters where no such gaps exist, the CC has been inconsistent in
addressing the relevance of the text of the ECHR and of ECtHR jurisprudence in its decisions
(Chirita 2003). Its application of the Convention varies: On many occasions it has declared
unconstitutional a domestic norm on the grounds of violation of the ECHR (CC judgments 234, 20
19
Dec. 1999; 145, 14 July 2000; 112, 19 Apr. 2001; 148, 8 May 2001; 255, 20 Sept. 2001) and has even
done so on its own initiative (CC, judgment 199, 23 Nov. 1999); but at other times it has (1) failed
to offer any guidelines for applying concededly relevant ECtHR case law (CC, judgments 104, 11
Apr. 2001, and 234, 20 Dec. 1999), (2) failed to cite and apply obviously relevant ECtHR caselaw
despite its obligation to do so (CC, Judgment 55, 22 Mar. 2000, neglecting a 1999 ECtHR case
against Romania [Brumarescu v. Romania] despite a dissent criticizing the reasoning on this
grounds (3) dismissed a complainant’s reference to specific articles of the Convention as unduly
detailed (CC judgment 82, 8 Mar. 2001) and (4) failed to address litigants' arguments based on
the Convention and case law (CC judgments 11, 9 Feb. 1999; 211, 1 Nov. 2000; 171, 23 May
2001). These inconsistencies weakened the European human rights regime in Romania in that
they exhibited patterns of reasoning that departed from those of the ECtHR and reflected the
“old” understanding of sovereignty. Moreover, to the extent that the CC assumed the posture
of the official promoter of the ECHR in Romanian law, its lack of consistency in upholding the
ECHR regime has promoted a climate in which ordinary courts have not diligently been referring
to it cases that pose a potential conflict between the Convention and Romanian law.
Aside from these caveats, one can conclude that this constitutional court has considerably
strengthened the ECHR regime in Romania, primarily because it has reversed many longstanding
practices that were out of line with ECtHR rulings. It also challenged a complacent attitude of
the judiciary toward international legal norms.
D. Conclusions to Section 2
At least at the formal level, the findings in this section produce mixed results for our
hypothesis. In Romania, not yet in the EU, its Constitutional Court has been markedly inconsistent
in following the authority of the ECHR and of the caselaw of the ECtHR. So, at the extreme, our
thesis in a sense holds. On the other hand, concerning the contrast we expected between the
earlier, rule-of-law-entrenched EU members (Germany, the Netherlands, France) and the later
ones -- the ones with recent lengthy histories of dictatorial rule (Spain, Portugal, and Greece) – at
20
least at the level of formal constitutional law, we found noteworthy variation within each group,
rather than the unidirectional contrast we expected. Specifically, France, with its decades of
formal resistance by its high-level judiciary to the wording of its own Constitution, which should
have indicated that the Convention and its caselaw took priority over domestic law, took much
longer to accept the ECHR regime (and, in terms of treating caselaw as binding precedent,
remains somewhat resistant) as compared to Spain, which ratified the Convention only in 1979.
Germany, a stalwart of the EC system did not officially amend its Constitution to give priority to
ECHR law any sooner than the French shift, but did move via interpretive change at the hands of
its Constitutional Court just around the time that the French Court moved in the same direction.
Strikingly, despite the difference in times of entering the Council of Europe, the Spanish, French,
and German Constitutional Court moved roughly contemporaneously to give ECHR law priority
over domestic law, and this judicial initiative occurred roughly at the time of the EC’s Single
European Act of 1987. The formal constitutional law of both Greece and Portugal does appear
to have lagged behind the other EC members in our sample with respect to assimilating the
ECHR regime.
3. The Regime Norms and Rules in “Sub-Constitutional” Courts
In these seven countries (and in much of the world) the dominant pattern is that authority to
engage in constitutional review of national statutes is reserved to a single special court. The
three exceptions among our seven were the Netherlands, where constitution-based judicial
review of acts of the national legislature is forbidden; Portugal, where all courts share the power
(although treaty-interpreting power is, in principle, reserved to a single high court); and Greece,
where all courts share the power (and are in principle obliged to exercise it) but which has a
body, the Special Highest Court of Greece, that is, among other things, designated to resolve
any disagreements on the meaning of the Constitution between any two of its three high
appellate courts. These arise only rarely (Bechlivanou 1992, 169). This overall situation means that
strong leadership, or lack thereof, by the Constitutional Court (where there is one) substantially
21
influences such questions as whether the ECHR is treated in fact as binding, and that is why we
devoted a section to constitutional courts and their constitutions. The application of the
Convention by ordinary (in the sense of the other than special constitutional) courts cannot be
ignored either. To the degree that such practice prevails, the ECHR more fully attains the status
of binding norm, which the formal constitutional systems of all seven countries in principle
establish. In the nature of things, a single court for a whole country does not have time to hear
more than a very tiny fraction of all cases that come along. Only if ordinary domestic courts
routinely apply the ECHR, will these countries in fact attain the objective set forth by the ECtHR:
to “safeguard the individual in real and practical ways, ” establishing “not rights that are
theoretical or illusory, but rights that are practical and effective” (Artico vs. Italy ECtHR 1980;
Airey vs Ireland ECtHR 1979).
Unlike the ECJ, which issues binding interpretations of Europe-level law in Preliminary Rulings
to member state courts, the ECtHR has no mechanism allowing it to communicate directly with
national courts and, as a consequence, faces more difficulty in constructing a legal regime. In
the EU countries, however, the ECtHR presumably benefits from the creation by the ECJ of a
“community of law” at both the domestic and transnational level. The conjecture that the same
judges who have been socialized in the practice of referring domestic cases for interpretation
by the ECJ and who are generally accustomed to make judgments bounded by (EU)
transnational law norms would be more likely to take guidance from supranational ECHR law
than the ones who have not, thus was one of the two foundations for our hypothesis that length
of EU membership would be related to strength of the ECHR regime within a country.
A. Core EU Countries
I. France
The French Supreme Court for civil and criminal law, the Cour de Cassation has been at the
forefront of acknowledging the force of ECHR law in France, having recognized its legal force in
cases as early as 1975 (Respino, decis. 3 June 1975; Glaeser, decis. 30 June 1976; Judgment of 5
22
Dec. 1978, cited in Steiner 1997, 281 n. 58). These early forays into ECHR jurisprudence, however,
were erratic and marked by ambivalence (Steiner 1997). Once the Conseil Constitutionnel
changed its stance toward the ECHR, however, the Cour de Cassation followed along
enthusiastically. Between 1987 and 1997 this court issued more than 700 decisions pertaining to
the applicability of the Convention and ECtHR caselaw (Fabre and Gouron-Mazel 1998), and
altering its own jurisprudence in case after case after France lost at the ECtHR (e.g., Cour de
Cassation decis. 12 June 1996 pursuant to Foucher v.France ECtHR 18 March 1997).
Still, the record of the Cour de Cassation has been uneven. One can point to numerous
cases, where this court has faithfully applied ECtHR standards to alter French law. For example, it
declared Art. 546 of the French Code of Criminal Procedure incompatible with ECHR Art. 6 on
the equality of the parties before the court (Judgment 21 May 1997). Also, this court issued a
ruling to bring French practice into conformity with ECtHR decisions on the standards of
interrogations for criminal proceedings (Judgment 26 March 1998). But in several cases which
are sensitive to the creation of European rule-of-law standards such as the right to defense
counsel and the right to file for appeal, the Cour de Cassation has mounted what Jean-Pierre
Marguenaud (2001) termed a “rebellion” against the ECtHR, by refusing to consider explicit case
law outlined by the ECtHR in judgments issued against the French state itself. In Poitrimol v.
France (23 Nov. 1993), Guerin v. France (29 July 1998) and Omar v. France ( 29 July 1998) the
ECtHR condemned the French judicial rule according to which a person resisting arrest may not
file for appeal and be represented by a lawyer. The Cour de Cassation refused to overturn the
rule (Judgments of 19 Jan. 1994; 15 Feb.1994; 9 Jan.1995; 14 Nov.1996; 18 Nov. 1997; Gouttes
n.d.). This court exhibited similar intransigence towards the ECtHR standards of Bellet v. France,
(4 Dec. 1995) in its decisions of 6 Jan. 1997, Affaire “Fondation saint Marc," (Gouttes n.d.).
Subsequently the same criminal chamber of the same court yielded, only to reverse course two
months later, with reference to the same Article 6.1, in the widely televised (former Nazi) Papon
case, when the French judges again ignored the ECHR-relevant Poitrimol case-law.
23
French lower courts have tended since 1988 to use the Convention more extensively than
before, even following the ECHR in preference to explicit French statute law, and copying ECtHR
reasoning almost verbatim, although often without acknowledging its source (Margenaud 2001,
5-7; Lembert 1999, 345). Still, they seem to limit their preference for ECHR law to situations where
French law (statutory and/or caselaw) either confirms or is silent about particular Convention
provisions (Gouttes n.d.; Lembert 1999, 349-50).
II. Germany
In Germany, the practice of applying ECtHR jurisprudence as a direct source of law is relatively
rare because of the widespread belief among German judges that the fundamental rights listed
in their Federal Constitution are wider in scope than those found in the Convention (Burkhard
2000; Voss 1997, 158). But this is not the whole picture, because the detailed guarantees of
Articles 5 and 6 of the ECHR do not appear in the German Constitution. Indeed, despite this
general belief, in a number of instances German courts discontinued (well-entrenched) rules of
pre-trial criminal proceedings that exceeded the standards of reasonable detention time
(Art.6.1) set by the ECtHR (Frowein 1992, 126; BGH StV. 1992, 452-453; BGHR St. GB 46 Abs.2
Verfahrenverzogerung 3). Ordinary courts, on their own, are applying a number of other ECtHR
standards (e.g., the Art.6.3 rule on legal assistance from Pakelli vs. Germany, ECtHR, 25 April
1983) to alter rights-restrictive domestic statutes, enforcement practices, or caselaw that have
neither been amended yet by the legislative power nor invalidated by the BVerfG (Frowein
1992, 126).
III. The Netherlands
If German ordinary courts are sophisticated at applying ECtHR case-law only with regard to
Article 6.1, 6.2, and 6.3, their counterparts in the Netherlands (where all the courts are “ordinary
courts” in our sense of the word) do so on a systematic basis with regard to both the ECHR and
ECtHR caselaw. In this country the appeals court of Arnhem first applied the Convention in 197879; today, recourse to the ECHR and ECtHR jurisprudence is de rigueur for Dutch judges
24
(Corstens 2000). These courts have grown remarkably sophisticated in making judgments based
on the Convention and have exercised interpretive skills that reproduce those of the ECtHR on
such doctrines as the national margin of appreciation (see above) (e.g., case of 9 Jan. 1986,
Arrondissementrechtsbank, Zwolle, No. 14740/1985, cited in Vervaele 1992, 223.)
In part, this sophistication with respect to ECHR law must be attributed to the Dutch
constitutional provision (Art.94) that authorizes all courts to apply “provisions of treaties or
decisions of international institutions.” Whenever the merits of the case bear on rights protected
by the ECHR, the discussion of the ECHR article in point is standard procedure. On many
occasions, Dutch low-level courts ordered a human rights protection very shortly after the ECtHR
standards for it were laid out—whether the decision directly concerned the Netherlands as
defendant (as in, e.g., Hoge Raad judgment 2 July 1990, pursuant to Kostovski v. the
Netherlands, ECtHR 20 Nov. 1984) or involved a challenge to some other country's practices. For
instance, the ECtHR ruling in Abdulaziz, Cabales and Balkandali v. UK (28 May 1985) was
incorporated into Dutch jurisprudence within a year (Vervaele 1992: 224).
In Germany, the Netherlands, Spain and, to a lesser degree in France, ordinary courts now
factor into their judgments standards from ECtHR caselaw and have become remarkably
knowledgeable about the ECHR regime, capably applying complex patterns of ECtHR
reasoning, including those which distinguish cases which, although arguably germane to the
case in hand, differ in important nuances.
B. Newer EU countries: Spain, Portugal and Greece
For the reasons explained in section 2, Spanish ordinary courts routinely use the ECtHR case
law, whereas their Portuguese counterparts –at least as judged by analysts in the early 90s—
were doing so only infrequently (Cavagna and Monteiro 1992, 179). The recently invigorated
self-described leadership of the Portuguese Tribunal Constitucional noted above may well be
triggering a change in the ordinary courts (although we have not yet found a second-party
account of the lower courts’ reaction).
25
Until Greece recognized the right to individual petition in 1985 and lost a long list of cases in
Strasbourg, the Convention had little effect there (Bechlivanou 1992, 165-167; Perrakis 1996, 171).
For years, many ordinary courts' decisions produced law later judged to be violations of the
Convention, such as the interpretation of Art. 6 of the Greek Constitution as not protecting the
individual against civil imprisonment (Salonika Court of Appeal, Judgment 7 Sept. 1990;
Thessolaniki Administrative Court of First Instance, Judgment 1753/1983, cited by Bechlivanou
1992, 164). In some cases, ordinary Greek courts issued judgments that directly violated explicit
standards from an ECtHR case in which Greece itself had been a plaintiff (e.g., two decisions
contrary to Kokkinakis v Greece, 25 may 1993, are cited in Committee of Ministers Resolution DH
97, 576 of 15 Dec. 1997). Even today, ordinary Greek courts often refuse protection of a
particular human right guaranteed by the Convention on the sheer grounds that the
Convention allows for restrictions, without providing anything like the kind of justification for such
restrictions that is demanded by ECtHR jurisprudence, such as the requisite explication of criteria
of “legitimacy” and “democratic necessity” (e.g. Crete Court of Appeal (Efetio), Judgment 17
may 1987). Most recently, a Greek court (Misdemeanour Court of Lamia, Judgment 5 Jan. 2000)
defied a series of repeated ECtHR judgments that the Greek practice in question violated the
Convention (Thlimmenos v.Greece, ECtHR decis. no. 34369/1997, 6 Apr. 2000; Kokkinakis v.
Greece, ECtHRR 1993). In sum, the Greek judiciary does relatively little to uphold the ECHR
regime.
As with our discussion in Section 2, Greece and Portugal are laggards in implementing the
ECHR regime, Spain does at least as well as long-time EU members, Dutch courts were in the
vanguard, and France resists the ECHR regime more than does Germany or even Spain—a less
longstanding member of the EU.
C. Non-EU countries -- Romania
Despite ECHR ratification in 1994, only after the first couple of ECtHR rulings against Romania,
Vasilescu v. Romania 22 May 1998 and Petra v. Romania 23 Sept. 1998, did Romanian courts
26
start in noticeable numbers to address the ECHR. Then, from 1999 through 2002, the basic
picture was that a minority of the judges increasingly honored the law of the ECHR, while most
judges treated it as just another ineffectual international treaty. On the pro-ECHR side, for
instance, the Supreme Court (Curtea Suprema) reversed in 2000 its prior jurisprudence on the use
of legal venues for the retrieval of real estate confiscated by the communists after the ECtHR
adjudged this line of precedent a violation of the Convention (Brumarescu v. Romania 28
October 1999). Also, at least one regional court of appeals crafted its plea of unconstitutionality
at the Constitutional Court around ECtHr caselaw (e.g., Curtea de Apel Brasov, provisional
judgment no. 515/p/2001). These examples, however, do not typify the entire judiciary.
The dominant pattern since 1999 has been that Romanian lawyers only sporadically deploy
ECHR-based claims, due to their [accurate] perception of widespread unresponsiveness by lowlevel courts to such arguments. Indeed, despite several atypical examples one could cite,
neither the Supreme nor the intermediate courts of appeals, as of the first half of 2003, had
shown any intent to incorporate the body of ECHR law systematically into Romanian
jurisprudence.
Mid-year 2003, however, seems to be ushering in a new, more ECHR-friendly era for the
Romanian judiciary. The end of June brought two pivotal events. First, in response to a 3 June
2003 decision of the ECtHR (Pantea v. Romania ) that declared the Romanian arrest warrant
system inconsistent with the ECHR requirement of separation between the executive and judicial
branches, the Romanian Supreme Court (on 27 June 2003) released a judge arrested on
corruption charges. In doing so, it declared that Romanian prosecutors must cease issuing arrest
warrants, despite their statutory authorization to do so, and despite the fact that a Parliamentary
debate to amend this statute was in process at the time. In other words, for the first time, the
Supreme Court (in effect) declared void a Romanian statute on the grounds of a conflict with
the ECHR (even though the Constitution reserves constitution-based judicial review to the
constitutional court). Several lower courts immediately followed the lead of the Supreme Court,
27
in ordering releases of persons held on [newly] improper warrants. Within a week of the Supreme
Court action, the Parliament completed its ECHR-stimulated overhaul of the Code of Criminal
Procedure. This whole process received enormous media coverage and provoked nationwide
public discussion.
Secondly, in early July, the Ministry of Justice announced that it plans to send to Parliament
a draft Law of the Magistracy that would require all judges and prosecutors to follow ECtHR
jurisprudence in (respectively) their rulings and their pleadings. This move appears to be a direct
expression of the strong desire of the Romanian political leadership for EU membership, pending
in 2007 and contingent on, among other things, reform of the judiciary. As of fall 2003 the top
Romanian law schools will begin to require coverage of ECtHR law in the curriculum.
D. Conclusions to Section 3:
As noted at the end of Section 3.B, the distinction we initially hypothesized between the
core EU states and the newer EU members does not hold up across the board. While judges in
the Netherlands and Germany, on the one hand, and Portugal and Greece, on the other hand,
indeed form two distinctive groups along the pattern we expected, the cases of Spain and
France do not fit this pattern. Spain, an EU member only since 1986 has much more fully
embedded the ECHR regime into its law than has France, a founding member of the EU.
As for the three states where the ECHR regime is less well entrenched in judicial practice -Portugal, Greece and Romania – the Romanian judiciary has seemed most weakly committed
to the ECHR regime, in the sense that many of its judges have been repeatedly ignoring clearly
relevant ECtHR caselaw. In Greece, while there is frequent judicial resistance to or
misapplication of ECtHR law, at least the ECtHR jurisprudence has become a part of the active
vocabulary of the Greek judiciary. The Constitutional Court of Portugal, if one can trust its own
report, has taken large strides since 1991 to entrench ECHR legal doctrine (2002). Still, this
movement took on serious momentum only a decade ago, whereas ECHR law was by then an
old story in countries like the Netherlands, Germany, and even, surprisingly, Spain.
28
4. Legislative and Executive Branch Implementation of ECtHR decisions
A. Council of Europe Enforcement Regime
After the ECtHR hands down a decision against a signatory member of the Convention, the
only immediate concrete compulsion that the state confronts is its obligation to pay the “just
satisfaction” awarded by the ECtHR to the applicant, an obligation states fulfill more or less on
time, in light of the fact that each complainant functions as a highly motivated “monitor” until
the payment is made. Having paid the compensatory penalty, however, the state is not then
utterly free to preserve its domestic legal order intact and to persist in the same human rights
violations.
The obligation to reform its statutes and legal practices, implicit in its signing on to the
Convention, is enforced thereafter in a gentle and gradualist fashion by the Committee of
Ministers of the Council of Europe. This Committee meets every few months and consists of all
the foreign ministers of the (now forty-six) member countries. This Committee of Ministers
receives a report of each ECtHR judgment and responds to each with a Resolution indicating
the type of reform within the member country that is needed to satisfy the Court’s judgment
(e.g., elimination of a particular penal statute, reform of a particular police practice, etc.). The
state is held accountable at future meetings for reporting on what progress has been made to
meet the standards set forth in these Resolutions. In effect, the Committee of Ministers acts as
the administrative arm of the ECHR regime to implement, via public shaming, the rules implicit in
the judgment of the ECtHR. Should the state drag its feet for an unreasonably long period of
time, the Committee sanctions it by adopting interim resolutions that provide information about
the lack of progress in improving implementation (www.coe.int/intro/e-rules-46.htm).
EU organizations, too, play a role in this compliance regime. First, EU states are indirectly
pressured to behave, both by the ECJ, which regards the case law of the ECtHR as its own
minimum human rights standard, and by political pressure from the “ever deepening Union.”
Secondly, in the applicant countries the Commissioner for EU enlargement directly supervises
29
reform. Each applicant state is required to integrate huge swaths of the European legal order
structured in 30 negotiation chapters, one of which is that on “justice and domestic affairs,”
which has a rubric on human rights violations. The Commission annually reports on the state of
the judiciary and of human rights and scolds the applicant state if it fails to make reasonable
and timely changes. Thus, the EU integration and enlargement processes are highly intertwined.
These institutional forces engulf the state in a network of transactions created the by complex
interdependence of EU membership or associate status, which network furthers the
entrenchment of the ECHR in national policy.
Finally, the ECtHR itself plays a role in speeding legislative reform by the way it words its
decisions. In general, the Court refrains from directly stigmatizing a domestic norm as a per se
violation and, therefore, from prescribing specific policy reforms (Merrills 1993, 104). Nonetheless,
in certain landmark cases, the ECtHR took a more assertive stance and noticeably adopted the
role of agenda-setter. In one instance, after having conceded, “The state has a choice of
various means,” it added that a specific domestic norm violated the Convention (Marcks vs.
Belgium 1979). The state correctly grasped that this amounted to a strong recommendation to
change that law. The ECtHR announces such prescriptive decisions for the fulfillment of positive
obligations when the domestic order lacks normative provisions meant to secure respect for the
rights outlined in the Convention (X & Y v. Netherlands (1985)) or when the state has
demonstrated neglect for the protection of individual rights (Platform Artze fur das Leben v.
Austria 1992; Merrills 1993, 102-106).
B. Domestic level legislative and executive action
If the impact of ECtHR rulings were limited to monetary damages to single individuals who
brought suit, regime change would be very incremental indeed. In fact, the member states of
the Council of Europe typically engage in extensive legislative and executive branch reform to
implement ECtHR rulings. To redress and prevent future violations of the Convention, legislatures
and executive organs adopt new laws or legislative amendments, undertake systematic
30
screening of draft legislation, and send circular letters to law enforcement agencies to bring
their practices into compliance with the standards of ECtHR case-law. Additional executive
action has included ordering inclusion of the Convention and of its case-law in the curricula of
law schools, disseminating information concerning the Court to the public at large,
implementing measures to ensure the independence and the professional prestige of the
judiciary, and, finally, training in human rights for sectors responsible for law enforcement.
Within this evolving transnational regime, what, then, are the mechanisms pushing the socalled sovereign states to adopt legislative change and administrative reforms? First, the
rationally calculating state, aware of the financial consequences looming in the potential that a
stream of follow-up complaints ("repetitive applications") may be filed in Strasbourg, may decide
that the costs of the “just reparation” payments to be made would outweigh both the material
and the non-material benefits of preserving the successfully challenged legal domestic norm.
Secondly, the state may abandon its resistance and reform the law after the painstaking and
prolonged ordeal faced by its representatives, obliged to justify its resistance three or four times
a year in legal language understood by the other members of the Committee of Ministers. These
psychic and political costs are particularly high for EU applicant countries, but even member
countries are aware that in the extreme situation, a non-complying country could get booted
out of the Council of Europe.
Our empirical excursus (based largely on sources in www.echr.coe.int) found a mixed
picture: All the surveyed states have taken some extremely prompt corrective action pursuant
to ECtHR decisions in a number of crucial fields of domestic law, and all but one (Spain!) also
exhibited instances of footdragging.
For example, the Netherlands, widely perceived as exemplary in the degree of its
cooperation with the ECHR regime, in one case, in anticipation of a decision of the ECtHR,
corrected a challenged statute two years before the Strasbourg Court ruled it a violation: The
legislature reformed the rules on confinement of the criminally mentally ill two years before
31
Koendjbiharie v. the Netherlands (ECtHR 1990). Yet even the Netherlands can take as long as
five years after a negative ECtHR decision for the legislature to respond with appropriate reform:
Five years elapsed (from 1986 to 1991) before the Dutch legislature changed its labor statutory
regulations so that they conform to the ECHR standards announced in Feldbrugge v. the
Netherlands (29 May 1986).
This mixed pattern of conduct appears to be replicated in Germany, France, Portugal,
Greece, and even Romania. The Romanian Code of Civil Procedure was amended to allow
individuals in the future to re-open their original case pursuant to ECtHR decisions that such
individuals had been wronged, in order to assure full implementation of ECtHR decisions. Most
recently, within weeks of the 3 June 2003 ECtHR decision on the arrest warrants system, both the
legislative and executive branches reformed the Code of Criminal Procedure to replace
prosecutors with judges as the issuers of warrants for arrests, searches, and wiretaps. Moreover,
the Ministry of Justice is urging Parliament to adopt legislation that mandates adherence to
ECtHR precedent by all prosecutors and judges.
Greece, like the Netherlands, has produced some legislative reforms in mere anticipation of
a negative ECtHR decision: Law 2298/95 of 4 April 1995, reforming pretrial detention,
anticipated by a few months Kampanis v. Greece of 13 July 1995. In other instances Greece
implemented reforms within a year or two of the ECtHR holding; e.g., in response to Holy
Monasteries v. Greece, judgment 9 Dec. 1994, the Greek Parliament adopted Law 2413/96 to
protect the rights of monasteries.
Portugal diligently redesigned its entire judicial system pursuant to ECtHR decisions Silvia
Pontes v. Portugal(1994), Gama Cidrais v. Portugal (1994) and Lobo Machado v. Portugal (1996)
(COE Press Service 2000).
Spain actually overhauled statutory codes on three separate occasions in anticipation of
an adverse ECtHR ruling on them. The Code of Criminal Procedure and the Criminal Code were
amended (with respect to the actions of armed bands and terrorists) in May of 1988, in the early
32
stages of the Case of Barbera, Messegue and Jabardo, judgment 6 Dec. 1988. Similarly an act
of 28 Dec. 1988 re-organized the judicial system, in anticipation of the ECtHR decision in Union
Alimentaria Sanders SA v. Spain, judgment of 7 July 1989. Spain also adopted a law on 9 June
1988 reforming its Constitutional Court procedures in anticipation of the ECtHR’s Ruiz-Mateos v.
Spain, judgment 23 June 1993.
France reformed statutes in response to the ECtHR in as little as a year’s time. The first
Strasbourg decision against French law was Kruslin and Huvig v.France ECtHR 24 April 1990. The
French legislature promptly complied by passing Act no. 91-646 of 10 July 1991 (effective 1
Oct.1991) on telecommunications secrecy. On at least one occasion it amended legislation
even before the Court handed down a decision: France altered its criminal procedure law in
January 1993, to prevent breaches of the principle of the presumption of innocence and allow
for rectifying measures, well in advance of Allenet de Ribemont v. France, ECtHR 10 Feb. 1995.
The French Parliament, faced with the erratic behavior of its Cour de Cassation and in
deference to the ECtHR, eventually intervened to abrogate article 588 of Le Code de
Procedure Penale (regarding the pre-trial length of detention time), which had supplied a
number of cases lost by France at the ECtHR (Steiner 1997, 293-94).
Germany amended the provisions of the Court Costs Act and of the Code of Criminal
Procedure concerning interpretation costs in its Act of 18 Aug. 1980, in prompt response to the
28 Nov. 1978 ECtHR judgment in Luedicke, Belkacem and Koç v. Germany.
Similarly, one can also point to instances of footdragging in the all countries in our sample
except Spain: (1) Letellier v. France, ECtHR 26 June 1991. Law reform: 30 Dec. 1996. (2) Ozturk v.
Germany, ECtHR 21 Feb. 1984: Germany changed the law on payment of interpreter fees in
administrative proceedings on 15 June 1989. (3) After Vasilescu v. Romania (ECtHR 22 May 1998)
Romania still has not amended its Code of Criminal Procedure to allow for appeals against
certain prosecutor’s acts, as is required by the Committee of Ministers. Also, while the
prosecuting arm of the executive branch in cooperation with a committee of Parliament
33
expeditiously produced drafts for amending the Criminal Code with reference to the standards
for filing criminal libel in response to the ECtHR’s Dalban v. Romania, Sept. 1999, the related
legislation passed in differing versions in the two legislative chambers and has yet to be
reconciled into a valid law. (4) It took the Netherlands five years (from 1986 to 1991) to change
its labor statutory regulations so that they conform to the standards in Feldbrugge v. the
Netherlands (ECtHR 29 May 1986). (5) As for Greece, three years elapsed before it changed the
criminal military code (from 1992 to 1995) to conform to Hadjianastassiou v. Greece (ECtHR 16
Dec. 1992). Four years elapsed before it amended the Constitution (Art.93.3) with respect to
criminal procedures that had been condemned in Georgiadis Anastasios v. Greece, ECtHR 29
May 1997. (6) After the adverse Matos & Silva, & 2 others, ECtHR 19 Sept.1996, Portugal did not
rectify the problem until the final judgment of the Plenary Assembly of the Supreme
Administrative Court, on 21 Feb. 2001. (7) Spain has been taken to the ECtHR in seven instances,
but in only three of them did the Committee of Ministers consider legislative reform necessary. In
each of these cases the Spanish reform predated the ECtHR ruling.
In sum, the length of delay between ECtHR decision and reform at the national level has
occasionally been as long as five years, but compliance in the sense of domestic reform within
less than two years of the decision appears to be quite common.
C. Conclusions to Section Four
The findings in this section lack the clear pattern of variation across the three categories that
we initially predicted. In terms of the pace of responding to the ECtHR with cooperative
legislative or executive branch alterations of the status quo ante, we have failed to confirm our
hypothesis that states with a more lengthy prior commitment to the rule of law domestically will
be significantly more receptive to the rule of law of the ECtHR regime. No such pattern
appeared. All of the later joining countries to the EU and even applicant country Romania have
repeatedly demonstrated a notable willingness to implement legislative and administrative
reforms attentive to ECtHR decisions and to Committee of Ministers Resolutions implementing
34
them.
5. Conclusion
This paper tested the assumption that the European Convention on Human Rights would be
more effective in legal systems that belong to the liberal core of Europe (as operationalized by
length of membership in the EU), and did so for two reasons. The first was that these states have
long-term commitments to legal systems respectful of individual rights, and a correlation
between such commitment and acceptance of transnational regimes is prominently
hypothesized in the IR literature. Secondly, it seemed common-sensical that long-term
experience with one supranational legal regime (that of the EU) would be linked to more ready
acceptance of related supranational legal regimes (specifically that of the ECHR). We
examined seven Council of Europe member states, three with long rule-of-law traditions, and
long-time members of the EEC/EC/EU; three with shaky recent histories with respect to the rule of
law, and more recent membership in the EC/EU, and one, an applicant state to the EU, which
has emerged from dictatorial rule only within the past fifteen years. We examined them with
respect to formal constitutional provisions, legal doctrine from constitutional courts as to the
meaning of the constitution, judicial practice in the other courts, and practice in the executive
and legislative branches.
The paper found a considerable degree of variation in judicial reception of the Convention
across legal systems with essentially the same constitutional text regarding the hierarchy of
international vs. domestic norms (e.g., France and Spain). Moreover, a restrictive constitutional
text vis-à-vis international treaties did not prevent Germany from granting constitutional value to
the Convention by judicial interpretation. Also, we found that while seniority in the EU liberal
core may be an important variable—certainly it predicted accurately that the Romanian
judiciary would lag behind the others in our study -- the separation lines between the first and
the second group seem to be blurred by the quality of reception of the Convention regime in
Spain and France. By our prediction, ECtHR rules would have been better received in France,
35
but the reverse seemed to be our finding, certainly as to overall treatment of the corpus of ECHR
law by the respective judiciaries. Also, despite quite different constitutional texts on the subject,
and despite the much later entry of Spain into the EU and ECHR systems, the Constitutional Court
of Spain, of France, and of Germany, all asserted the priority of ECHR law over domestic law
within roughly the same time period, the period around the Single European Act of 1987.
Moreover, we also found surprising contrasts among branches within individual countries.
Portugal, for instance, has a judiciary that for a long time was quite resistant to ECtHR rulings, but
on a number of occasions reformed its executive and legislative practice even before the
ECtHR reached the point of issuing a ruling against it; in other words, the mere fact of a
registered application for a complaint to be heard at Strasbourg was enough to provoke reform
in Portugal on the matter in dispute. Similarly, the French Parliament on occasion proved
considerably more cooperative than the French judiciary toward ECHR-inspired reform.
These findings invite one to look beyond the simplistic division of the world into simply rightsrespecting/rule-of-law states vs. the rest, thus calling into question the predictive utility of the
hypothesis we culled from the IR literature. It turns out that a variety of other variables may be
forceful enough to “trump” the impact of a rule-of-law tradition [or its absence]. In our small
study in particular, variables that seemed to be influential included (1) strong leadership by the
personnel of constitutional courts in Spain and Germany, and by the legislature of Spain, which
displayed the most prompt record of ECtHR compliance of any in our study; (2) political and
judicial leadership in the decade of the 1990s in Portugal; (3) a political culture in France that
elevates state sovereignty to almost iconic status, thereby slowing French willingness, especially
within the judiciary, to subordinate the French state to transnational authority; (4) the impact of
the general political mood in Western Europe, at least around the time of the Single European
Act; and [5] for the case of Romania, pressure to “Europeanize” the training of the judiciary and
professional bar from the European Commission, backed by the carrot of EU membership in
2007, which pressure has produced important reforms, as of mid-2003. Explorations of other
36
aspects of political culture besides commitment to the rule of law and liberal rights, and careful
attention to such matters as political leadership, court leadership, the influence of particular
NGOs (such as the national bar), and the overall mood of the electorate, cannot sensibly be
neglected for the sake of monocausal explanations.
While the claims in the IR scholarship of the importance of a rule-of-law culture for easing
transition in supranational legal regimes may have some validity not discernible in a study
covering so few countries as this within a time span as short as fifty years, and countries with such
a substantial cultural overlap, we could not demonstrate proof of its consistent impact among
the Council of Europe countries we examined. In effect, it predicted correctly as to
constitutional and judicial doctrine for some of the seven countries we examined, and erred as
to some: the Dutch and the German do rank above those of Portugal and Greece on ECHR
embeddedness, and Romania below the rest. But Spain ties with the Netherlands, instead of
being below it (outdoing both Germany and France), and the French judiciary may approach
that of Portugal—certainly it is below Spain. Moreover, the prediction is a flop as to legislative
and executive branch reform in response to ECtHR decisions; all seven countries do reasonably
well, and Spain does exceptionally well, with no obvious other differences discernible.
NOTES
1. Two of the participants to the drafting Conference, Italy and Germany (observer), could
hardly claim to be members of this select club immediately after the war, given their former
embrace of Fascism (Italy 1922-1944) and Nazism (Germany: 1933-1945). However, the
delegations of these two countries were among the strongest supporters there for
enforceability of the human rights system (Moravscik 2000).
2. The European Commission, the executive branch of the EU (not of the Council of Europe),
contributes to the implementation of the ECHR regime in two ways: First, it disburses
significant amounts of money to EU applicant countries to enforce democracy and the rule
of law, mainly by funding judicial reform. Second, the EU Commissioner for enlargement
monitors the performance of the applicant states in securing the independence of the
judiciary and fighting against corruption in courts. Essentially utilizing the technique of
shaming, the Commission issues country reports annually on each applicant
(www.europa.eu.int).
3. Greece, despite its siding with the Allies, had a National Socialist (i.e. fascist) dictatorship from
1936 until 1945, a civil war from 1946-1949, then a constitutional monarchy with
Parliamentary rule until 1967, at which time it underwent a military coup. The military junta
37
exercised a dictatorship from 1967 until 1974. The Greek Third Republic reintroduced the
Convention into Greece in 1974 (Law No.53).
4. Despite an appointment process geared to guaranteeing judicial independence, observers
do still note that Romania faces difficulties in eliminating corruption from the ranks of its
judges, as well as other public officials (Gall 2001). Nonetheless, it is not obvious to us that
the corruption problem is substantially worse there than, for instance, in long-time EU
member, Italy.
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