General Background

In recent years, there have been more and more instances where national courts, in a principled manner, declared their unwillingness or inability to give suit to an ECtHR judgment. So far, those cases have initiated discussions about the Court’s ‘legitimacy’ and about the necessity of having a ‘dialogue between judges’. The conference takes a different approach, labelling such cases examples of ‘principled resistance’. The research question is whether those cases reveal a general pattern: Has the Court overstretched its competence by its evolutive interpretation so that cases of ‘principled resistance’ may be explained as reactions necessary to preserve national identity? Or is the current accumulation of such cases just a coincidence and are the underlying rationales too divergent to reveal a general pattern? The conference aims to give a dogmatic answer to those questions and thereby to help preserving the long-term functioning of the Convention.

Presentation Background

Implementing International Judgments: Dogmatic Concepts and Possible Obstacles

The first contribution aims to clarify the dogmatic foundations of implementing international judgments. Most well-known is the difference between monist and dualist countries but there may be other factors as well that are determinative for enabling or inhibiting implementation.

Implementing International Judgments: A Social Science Perspective

For a long time, research on international courts has been mainly left to lawyers and political scientists. In recent years, however, international courts have attracted attention of social scientists as well. The social science perspective allows for a broader look at the topic. In particular, recent sociological research addresses the issue of legitimacy of international courts, a question that is pivotal in the context of securing implementation of international court judgments.

Country Report Germany

In Germany, the status of the Convention and of ECtHR judgments is governed by the Görgülü decision given by the Federal Constitutional Court (FCC) in 2004 . In that decision, the FCC sent an ambivalent message: on the one hand, the FCC helped to overcome a lower instance court’s resistance against the judgment given by the ECtHR. On the other hand, however, the FCC could not resist underlining that it retained the last word of constitutional sovereignty. Therefore, at least in theory there may be cases where an ECtHR judgment cannot be implemented, due to reasons of constitutional law, although this scenario has not materialized so far. In December 2015 the FCC gave decision on the so-called ‘treaty override’. In that decision, the FCC underlined that due to constitutional law reasons, the German legislator had the power to pass new legislation overriding an international treaty, according to the ‘lex posterior’ rule. The FCC was anxious to stress that this applies only to ‘ordinary’ international treaties but not to human rights treaties.

Country Report Italy

In Italy, the status of the Convention is governed by the decisions given in the so-called ‘twin-cases’ Nos 348 and 349 by the Italian Constitutional Court (CC) in 2007. In those decisions, the CC developed the concept of ‘norme interposte’, i.e. the Convention enjoys an intermediate rank between ordinary legislation and the Constitution. In 2015, the CC added two further decisions (Nos 49 and 50) holding that Italian courts are obliged to follow only an established case-law of the ECtHR. Thereby, the CC opened the door for deviations. This has to be seen in the context of decision No 238/2014 where the CC annulled national legislation implementing the ICJ judgment in the Jurisdictional Immunities case.

Country Report United Kingdom

In the United Kingdom, the Court is currently under tremendous political pressure, with the political establishment calling the Court’s legitimacy into question. This debate was primarily instigated by two ECtHR judgments, namely, Abu Qatada v UK (dealing with the deportation of a suspect terrorist) and Greens and M.T. v UK (dealing with the voting rights of serving prisoners). The voting rights case is particularly delicate because it necessitates a change of legislation, something that the Westminster Parliament has refused to enact so far. The political debate culminates in the project of replacing the current Human Rights Act by what is called the ‘British Bill of Rights’, with the declared aim of giving British courts the power not to follow an ECtHR judgment.

Country Report Russia

In Russia, the status of the Convention was clarified by a judgment given by the Russian Constitutional Court (RCC) in July 2015. In that judgment, the RCC stressed the superior rank of the Russian Constitution vis-à-vis the Convention, relying, inter alia, on the German FCC’s Görgülü decision and on the Italian CC’s decision No 238/2014. By the end of 2015, the Russian State Duma passed a law introducing a new procedure before the RCC. Under that procedure, the RCC may find whether or not a given ECtHR judgment can be implemented in Russia. This procedure, which has been critically assessed by the Venice Commission, was applied for the first time in the Anchugov and Gladkov case concerning the right to vote of serving prisoners. In contrast with the situation in the United Kingdom, the ban on voting rights is part of the Constitution, not of ordinary legislation. By a judgment given in April 2016, the RCC declared, in an unequivocal manner, that an amendment of the Russian legislation is legally impossible. At the same time, it underlined that implementation of the ECtHR’s Anchugov and Gladkov judgment is possible within the constraints of current legislation. The said procedure was applied a second time in the OAO Neftyanaya Kompaniya Yukos case where the ECtHR had awarded the applicant company almost EUR 1.9 billion in just satisfaction. By a judgment given in January 2017, the RCC declared this judgment to be impossible to execute, due to a irreconcilable conflict with the Russian Constitution.

Country Report Switzerland

In Switzerland, the Swiss People’s Party (Schweizer Volkspartei) launched a federal popular initiative called ‘Swiss law instead of foreign judges (Self-determination initiative)’ (‘Schweizer Recht statt fremde Richter (Selbstbestimmungsinitiative)’). The initiative aims at modifying the Constitution by inserting new provisions to the effect that the Federal Constitution takes precedence over conflicting international law, except in cases of ius cogens. Its main target is the ECtHR whose judgments are heavily criticized by the authors of the initiative. In August 2016, the initiative was officially submitted, having found more than 110.000 supporters. It is expected to be dealt with by the Swiss government in 2017.

The Perspective of the Venice Commission

The Venice Commission published an Interim Opinion (No 832/2015, CDL-AD(2016)005) concerning the new procedure before the RCC in March 2016. The Opinion was mainly critical, in particular it stressed that a ‘possible declaration of unenforceability of a judgment of the European Court of Human Rights violates Article 46 of the European Convention on Human Rights’. Due to the short time span, it could not benefit from comments made by Russian authorities, which is why the opinion is an interim one. In June 2016, the Venice Commission published its Final Opinion (No 832/2015, CDL-AD(2016)016) after having consulted the Russian side. The Opinion is more nuanced, which is also due to supplementary information from the Russian authorities, but still maintains that an unreserved declaration of unenforceability is in violation of the Convention.

The Perspective of the ECtHR

Though not being directly involved in the supervision of judgment implementation, ‘principled resistance’ against its judgments is of paramount importance for the Court.