Human Rights Law Review

Human Rights Law Review 2009 9(3):397-453; doi:10.1093/hrlr/ngp011

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Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments

Wojciech Sadurski^*

*Professor in the Department of Law of the European University Institute in Florence and the Faculty of Law, University of Sydney (Wojciech.Sadurski{at}eui.eu)

	Abstract

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Contracting States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe were ‘like-minded’ and the Convention system did not represent a challenge to their internal patterns of human rights protection. This article, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction that it is merely a sort of super-appellate court which scrutinises individual decisions rather than laws in Contracting States. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Contracting States, while also facilitated by collaboration between the European Court of Human Rights and national constitutional courts. The emergence of so-called ‘pilot judgments’ is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively ‘pierces the veil of the State’, and positions the European Court as a quasi-constitutional judicial body at a pan-European level.

... our pronouncements are decisions concerning minimum standards, irrespective of how the violations happened in Iceland or in Azerbaijan. We are not and cannot be the constitutional court for the 46 countries concerned. The fears that we shall usurp that role are not realistic.¹

	1. Introduction

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
The European Court of Human Rights (ECtHR)² and, more generally, the whole system of protection of human rights under the aegis of the Council of Europe (CoE), centred as it is around the European Convention of Human Rights (ECHR), while always an attractive subject of scholarly interest, seems to be enjoying renewed interest these days.³ It has become fashionable to press the claim that the Court has become (or is becoming) a sort of ‘constitutional court’ for Europe⁴—at least for that overwhelming part of the continent which forms part of the CoE, and insofar as human rights are concerned.

Whether this is indeed the case depends of course crucially on what one understands to be the typical properties of a ‘constitutional’ court, and even more fundamentally, on what one takes to be the properties of a ‘constitution’. But comparing the ECtHR to an ideal model of a constitutional court is, at first glance at least, not a very interesting exercise. There are clearly a number of points of analogy (such as issuing judgments on the basis of abstract and relatively vague human rights provisions formulated in a very similar way to typical, national constitutional bills of rights) as well as obvious points of dissimilarity (such as relying for effectiveness ultimately on the good will of nation-states whose commitment to the ECHR system is based on traditional, international-law type of obligations). Attempting to determine which of these series of features—analogies or disanalogies—would prevail does not seem to me to be a particularly fruitful exercise.

Yet, examining the ECtHR through the prism of ‘constitutionalism’ may prove useful, on the condition of bearing in mind that the point is not whether or not this Court should be granted the majesty of a constitutional body—too much relies indeed on ultimately arbitrary definitions as to what renders a body constitutional—but rather that it may be used as a device to better account for the evolution and changes of the ECHR system, especially in the context of the changed composition of the CoE. The template of constitutionalism is as good a framework as any to help us elucidate and understand the inter-institutional relations both within Europe, vertically, and within Contracting States, horizontally, against the background of the ECtHR's active and dynamic case law, which often quite effectively ‘pierces the veil of member states’.⁵ This approach is particularly useful in the context of the accession of post-Communist States of Central and Eastern Europe (CEE) to the CoE, as they cast their own concerns, problems and agendas on this arena, prompting a response of the Court.

This will be the focus of this article: what does the constitutionalisation of the ECtHR tell us about the relations between the legal orders of new member states and the European system of human rights protection? And, the other way around, what is the significance of the major enlargement of the CoE to the East in the 1990s as regards the putative constitutionalisation of the CoE system?⁶ But let me emphasise once again the purely instrumental role of the issue of ‘constitutionalisation’ for the purposes of this research. I do not have an aspiration of giving a sustained answer to the question of whether or not the ECHR-based system is truly constitutional or not. Rather, I am going to use a ‘constitutionalisation’ template as a device to account for the effects of the CoE enlargement on the ECHR system itself, as well as on the new member states.

At first glance, the accession of new members to the ECHR system seems to bear two main implications as regards constitutionalisation, which point in two opposite directions. On the one hand, the enlargement of the CoE results in a significant increase of diversity and heterogeneity within the CoE's constituency. In contrast to a club of largely like-minded West European countries which share much of their legal and political culture and traditions, as it was with 14 Contracting States at the point of the original signing of the Treaty, or even with 23 at the beginning of the 1990s, the CoE now comprises 47 Contracting States and displays an unprecedented and formidable diversity. Indeed, the differences between, say, Sweden and Georgia or Ireland and Latvia seem to be significantly greater than between Sweden and Greece or Ireland and Portugal. This would seem to point at a ‘de-constitutionalisation’, if anything. Constitution and constitutionalism seem to presuppose a degree of homogeneity as regards the constituency of the constitutional polity, indeed a modicum of similarity of approaches to human rights within the space covered by a single constitution and regulated by a single constitutional court. Concerning the ECtHR, this ‘de-constitutionalisation’ may be illustrated with the example of the concept of ‘margin of appreciation’. This established doctrine of the Court provides for a degree of deference by the Court to the Contracting State summoned before it—when there is no consensus on a particular right recognised by the Convention. When, on the contrary, such a consensus may be discerned, no margin of appreciation is allowed and the Court does not hesitate to override a delinquent State's practice. As a matter of pure logic, the enlargement of the CoE (and in the present case, on such a large scale) should therefore result in the lowering of the probability of finding an inter-CoE consensus and thus in an increase of the scope of the margin of appreciation. (Note that I am not inferring that this is actually occurring. Indeed, one of the intriguing aspects of the ECtHR, which will be considered below, is that the increased diversity of the CoE has not been met with an intensified resort to the margin of appreciation by the Court. The point here is to express a speculative conjecture, not to describe the empirical trend). However, an increased resort to the margin of appreciation would seem to contradict the purpose of a constitutional court, that is, to override any legislative or executive decision contradicting the Court's own interpretation of constitutional rights. This does not mean that only activist (or non-deferential) constitutional courts are genuine constitutional courts, but rather that courts that are leaning towards a more deferential approach seem to be favoring the political majoritarian choices, at the expense of the primacy of the constitution—at least, the judicially enforced constitution.

However, and this is the main constitutional implication of the enlargement which leans in the opposite direction, the increase of the number and diversity of the members of the CoE has also resulted in a surge of cases brought before the ECtHR raising issues concerning different urgent, basic, severe and egregious violations of human rights. This prompted an important change in the Court's position, and therefore a significant evolution. In the early years of the functioning of the ECHR system, the Court (and the Commission) had scarcely ever the opportunity to deal with grave breaches of human rights. There is indeed a certain benign paradox about the origins and the early years of the ECHR system: the very setting up of the ECHR system was prompted by the willingness to prevent the recurrence of extreme state violence and blatant disregard for the most basic individual human rights—hence the emphasis on the minimum standards for the protection of rights enshrined in the Convention. Yet, for the first 40 years or so the Court (and the Commission) rarely had to grapple with such matters. Instead, it operated to some extent at the margins of the human rights problématique, establishing the standards which were admittedly exciting for academic lawyers, but rarely going so far as to reverse really important policy and legal choices adopted within national systems. There was simply no reason for the Court to take up this role in the like-minded community of West European liberal democracies (with Turkey as the only distant relative),⁷ when the gates to the club were so firmly closed to the authoritarian and undemocratic regimes of the region. But the accession of the CEE States radically transformed this situation. The Court ceased being a ‘fine-tuner’ of the national legal systems and was compelled instead to adopt a role of policing the national systems in which serious violations of rights occurred or suffering from important systemic deficiencies as far as the CoE standards of rights are concerned.

This evolution from a fine-tuning role to that of the scrutiniser of failing legal and political systems brought to the agenda of the Court many cases of greater importance, both in terms of the severity of the violations and the systemic nature of the challenged deficiencies. This greatly reinforced the ‘constitutional’ role of the Court. One may of course claim legitimately that there are many unquestionably constitutional courts which essentially and fundamentally play only the role of fine-tuners. But the gravitas of the constitutional courts which intrude more heavily into the realm of legislative and political choices is considerably higher. Both the former (fine-tuners) and the latter (central policy actors) may be called ‘constitutional’, if one wishes so, but surely the ingredient of constitutionalism is more prevalent in the case of the US Supreme Court than that of the Japanese Supreme Court or, in the framework of continental European constitutionalism, in the case of the German BVG than that of the Italian Corte costituzionale. The whole distinction of fine-tuning v. fundamental policy intervention is of course a matter of degree, and may be subject to controversies. But if it is plausible (and I believe that it is) then there is no doubt that the European Court, with the enlargement to the East (and the accession of Turkey) has considerably evolved from the former to the latter. And by doing so its constitutional role has been significantly enhanced.

This last point can be illustrated with the appearance of so-called pilot judgments, that is, Court's judgments finding systemic and widespread violations, and ordering the State to undertake wide-reaching steps to redress the breach. This more constitutional role (compared with the traditional role taken up by the Court in individual cases, whereby no judgment is implied as to the law underlying the claim) has been largely driven by a number of systemic deficiencies within CEE legal systems. It is indeed no coincidence that the two most significant pilot judgments so far have originated from Poland. These will be discussed in greater detail in section 2. But before this, I will provide an overview of the ECHR system, and focus more specifically on the reasons and consequences of the fundamental transition it has undergone in the 1990s, with its enlargement to the Eastern and Central parts of Europe (section 1). After exploring the significance of the pilot judgments, as regards, in particular, the issue of a ‘constitutionalisation’ of the system, I will assess the reasons accounting for the contrasting approaches to the supremacy of the ECHR law over the national legal systems in the West and in the East (section 3). I will suggest that the various factors which explain the relative resistance against the constitutionalisation of the ECHR system in the West, do not prevail in the post-communist part of the continent. Furthermore, constitutional courts in CEE States play a particular role in the constitutionalisation process of the European Court of Human Rights, by engaging with the Court. In section 4, I will describe the main forms of this partnership, and provide some examples both of successes and failures of such interactions. Finally, I will deal specifically with the issue of constitutionalisation, and suggest standards to assess whether the European system is indeed undergoing such a process: whether the Convention has become a constitution, and the European Court of Human Rights—a constitutional court (section 5). In the Conclusions, I will consider the challenges lying ahead—both threats and promises—triggered by the enlargement of the Strasbourg system.

	2. The ECHR System in Transition

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
The ECHR system has been described, with justice, as ‘the most effective human rights regime in the world’.⁸ Indeed, compared to other regional and international frameworks of human rights protection, but also to the relatively modest aspirations which prompted the birth of this system, it is nothing short of impressive. It is based on an ambitious charter, likened by some to a European constitution,⁹ which is growing both in its formal textual scope—through successive Protocols—and also in the meaning and scope of the rights proclaimed through their interpretation by the Court. It is backed up by a political mechanism—via the Committee of Ministers and the Parliamentary Assembly which are tasked with various monitoring and supervisory functions related to the enforcements of rights. It is centred around the Court, which displays features of a genuinely independent supranational tribunal. Its judges are recruited in a way which provides only a partial control of Contracting States over the selection outcomes; while on the bench, the judges benefit from guarantees providing a real independence from pressure from their (or other) governments. Generally speaking, the Court enjoys a high degree of prestige and support from national judicial institutions, the political branches of the CoE, as well as legal academia. Moreover, the Court has successfully staked its claim as the final and authoritative interpreter of the Convention,¹⁰ thus equating the application of the Convention with that of its case law.¹¹ Its decisions are binding on Contracting States deemed to have violated the Convention, and are enjoying, through a growingly accepted custom, an authority of erga omnes nature, at least as far as the interpretive value of its judgments is concerned. The Court has an assured constituency, a sort of ‘captive audience’: all European States have a strong incentive to join the CoE (both for the prestige value and also as an indispensable condition for an eventual membership to the EU), and the acceptance of the compulsory jurisdiction of the Court is now a condition of membership to the CoE. The effectiveness of the Court's judgments is guaranteed by a number of interconnected devices, such as the supervisory role of the Committee of Ministers, the general (though subject to national variations) principle of the supremacy of the Convention over the national law of Contracting States or the rule according to which the judgments of the Court are binding on the States.¹² In fact, the Court's rulings have affected the shaping of domestic laws of Contracting States in more general terms, going beyond the determination of a specific remedy to a particular victim for a breach, by affecting legislative changes, governmental practices and judicial decisions throughout the CoE constituency.¹³ As for the actual level of compliance of States with the Court's rulings, it has been overall very high, and to such an extent that the judgments have been described as being ‘as effective as those of any domestic court’.¹⁴

This is not to say that the system is without its faults and weaknesses: each of the points listed in the paragraph above should be carefully qualified and counter-balanced with the facts and phenomena which detract from the unqualifiedly positive picture. The Convention itself—in its main bulk—reflects the human rights approach prevailing almost 60 years ago, and hence is in many ways anachronistic. The incremental way of updating it, through Protocols, has not resulted in a comprehensive and modern document, as compared with, for instance, the EU Charter of Fundamental Rights.¹⁵ The Court itself, in its procedures and modes of operations is closer to a more traditionally international institution than a fully supranational judicial body, such as the European Court of Justice (ECJ).¹⁶ Judicial independence is somewhat precarious due to a combination of relatively short terms of office (six years) and the possibility of re-election: this has been explicitly acknowledged in the current proposal of changing the term into one, non-renewable nine years.¹⁷ The binding role of its judgments upon the national constitutional (and other) courts is subject to doubts and questioning, and occasionally, an outright rejection. In Germany, for instance, the famous Görgülü decision of the Federal Constitutional Court¹⁸ set forth clear limits as to domestic courts’ duty of loyalty to the European Court, by basically stating that while domestic courts should take into account Strasbourg case law when interpreting domestic law, this must not violate the ‘competence order’ and ‘substantive constitutional law’ of Germany. As observed by a commentator, this judgment ‘keeps the door open for a respectful dissent’.¹⁹ Moreover, the status of the Convention in States Parties is not uniform: in some States, it is considered to bear a constitutional weight,²⁰ while in others it is less than constitutional but more than statutory,²¹ and in others still, it is of a merely statutory value.²² The same can be said for the status of the Court's judgments in domestic legal systems: some national courts are happy to apply the law of the Convention, especially where it has been incorporated into national law, without at the same time necessarily committing themselves to following the interpretation of the Convention set by the European Court. Similarly, as noted by Nico Krisch in his study of the position of Austrian, Spanish and French highest ranking courts towards Strasbourg case law, they ‘assert a power to decide on the limits of the authority of the ECtHR’.²³ The judgments of the Court are occasionally ignored and some national bodies—including constitutional courts—simply refuse to follow them.²⁴ In fact, while States have a strong incentive to join the CoE and consequently the ECHR system (as mentioned, for its prestige value and as a prerequisite for membership to the EU), once they are in they have little incentive to comply with the norms of the ECHR (not to mention the rather nebulous sanctions that the CoE system may impose upon them). In contrast to the EU or the NATO systems, in which, if a member reneges on its duties, other members have strong reasons to punish the free rider, the benefits of collective action of the CoE are neither economic (as in the EU) or military (as in NATO), but rather purely moral, and therefore non-compliance by one member does not affect adversely in any direct ways other members. So why should they care about non-compliance?

The Court itself has often been accused of displaying undue deference to Contracting States—by its use of the margin of appreciation doctrine—sometimes considered as no less than an abdication by the Court of its role as an authoritative standard-setter in Europe.²⁵ In addition, resort to this doctrine is often perceived as arbitrary and erratic. As it was noted, ‘it remains difficult to foretell whether in any given case the margin will be wide or narrow’.²⁶ Structurally, the Court is in effect beset by numerous weaknesses which impede both its effectiveness and also its intellectual-legal gravitas. It is under-staffed and insufficiently funded, with judges complaining about the absence of essential secretarial and research facilities.²⁷ The rules of operation themselves—including those concerning linguistic diversity—often render the effective consideration of a case a nightmare, and most importantly of all, the lack of power of the Court to control its own docket (except for merely formal admissibility tests) has resulted in a severe overload: the backlog now is such that the delay between application and judgment on the merits is of over five years.²⁸

So the picture is far from ideal. And yet, there is no other supra- or international- human rights system in the world which comes close to the weight, scope and effectiveness of that built around the European Convention. And it is all the more impressive since the original intentions of the founders indicated something more modest, and more basic. The system originated both in the memories and lessons of the atrocities of World War II and as a response to the Stalinist rule imposed on the eastern part of the European continent, on the other side of the boundary separating the two German States. This twofold initial purpose influenced the aspirations underlying the European Convention and the institutional system built around it. Its past-oriented motivation (the lessons of the World War II) accounted for a focus on the most basic conditions of human life and liberty, best expressed in Articles 2 to 7 of the Convention. Its concern centred on the most fundamental violations of human rights, recognising that they should command instant and unconditional outrage from all people, regardless of their cultural and political traditions. In turn, its present- and future-oriented purpose—related to the Cold War context of the newly divided Europe and the confrontation with the ruthless Stalinist authoritarianism over half of the Continent—prompted a concern with the fundamental political and civil rights and liberties, best articulated in Articles 8–11 of the Convention. Thus, the Convention and the Convention system were not, initially, aimed at perfecting the finer points of articulation of rights at the peripheral spheres of their meanings, over which many people may reasonably disagree, but rather to establish and enforce a consensus at the most basic, elementary level.

Fortunately, in the first decades of its life the system scarcely ever had to deal with the issues for which it was set up in the first place.²⁹ Due to the composition of the CoE, and the legal and political conditions prevailing in Western Europe—apart from the dictatorial regimes, e.g. that of Spain and Portugal—the Court was under-utilised in these early years, and the truly drastic violations of rights did not find their way to the Court, simply because they did not occur. In any event, in those early years, the institutional and procedural system effectively prevented any judicial hyper-activity. Indeed individual access to the Court was rendered mandatory for all Contracting Parties only in 1998. As a consequence, the Court's decisions in the first decades were relatively few and often of a less fundamental character. Rather than a watchdog set up to prevent severe breaches of human rights, the Court settled on a role of a legal fine-tuner, acting at the boundaries of rights, setting up subtle tests of proportionality to examine restrictions aimed at legitimate ends, establishing the tests of, for example, access to personal information contained in medical files,³⁰ the scope of the duties of authorities to consult trade unions in order to give effect to the right of freedom of association,³¹ or the status of ‘illegitimate children’.³² This was helped by a growing activism in the interpretive doctrine of the Court. By treating the Convention as a ‘living document’, the Court moved away from the self-restraint that would have been dictated by an interpretation guided by an analysis of the original intentions. It thus declared that the Convention ‘must be interpreted in the light of present day conditions’, rather than remain static,³³ and considered, moreover, that the limitations of the rights authorised in the Convention should be narrowly construed (thus, by implication, with a small degree of deference to democratically enacted legislative limitations).³⁴ In addition, the doctrinal vocabulary of the Court was enhanced by the ‘principle of effectiveness’, which requires that the Convention should be interpreted so as to ‘make its safeguards practical and effective’,³⁵ which in reality has led the Court to expand the protections of rights to a number of areas. As a result, the Court departed from the original purpose of the Convention, that is, setting a basic level of protection to be guaranteed by all Contracting States, and enthusiastically embarked on the more ambitious task of determining aspirational standards of human rights protection, in particular by applying proportionality tests in its interpretation of Articles 8–11.

However, the pending (and later, the actual) accession of a large number of newly democratised States emerging from Communist authoritarianism, radically transformed this situation. (There had been earlier accessions of newly democratised States, of course, including that of Portugal in 1976 and Spain in 1977, and the return of Greece to the CoE in 1974, after the restoration of democracy in that country, and one should not under-estimate the role of the ECHR system in affecting consolidation of democracy and human rights in those post-authoritarian states, but the overall impact was much less significant, and the ECHR system adjusted to these enlargements in an incremental fashion). Indeed, the institutional design underwent quite fundamental changes, in anticipation of an enlargement of such a scope. The most radical changes were brought about through Protocol No. 11 which entered into force in 1998. This Protocol abolished the European Commission of Human Rights and centralised the administrative authority to process claims in a new permanent Court. The most important consequence of these changes was that acceptance of individual applications and of the compulsory jurisdiction of the Court was rendered mandatory for all States Parties to the ECHR. In addition, Protocol No. 11 set up a limited appellate procedure from any seven-member chamber to a Grand Chamber of 17 judges, at the request of one of the parties. Overall, it is clear that the impending enlargement was a powerful agenda-setter to transform the Court.

Moreover, and even more importantly, the very profile of the cases which started being brought to the Court changed considerably. The main concerns of the citizens who chose to ‘go to Strasbourg’ to bring up issues for which they could not find a proper remedy in their home countries were no longer at the fringes of the rights enshrined in the Convention but right at its very core. Indeed the complaints no longer involved a controversial balancing of competing values according to a subtle proportionality test, but required an assessment of the minimum standards of protection of very fundamental rights. As one scholar observed: ‘The Court ceases to be a secondary guarantor of human rights and instead finds itself in a more crucial—and exposed—front-line position’.³⁶ The somewhat paradoxical consequence of the fundamental change in the composition of the CoE, as compared to its 1950 origins, was a return to the original intentions of the founders regarding the role of the institutional system of the Convention, i.e. to police the enforcement of basic rights, at a minimum fundamental level.

It is therefore not surprising that this arrival of new Contracting States, with significantly different traditions, cultures and approaches, and the accompanying influx of cases dealing with a more basic level of rights violation than before, raised concerns among the older Contracting States and among the scholarly and political observers and friends of the Court, as to a probable lowering of the standards. Indeed, a number of lawyers and observers, especially in the UK, expressly linked this prospect with the planned arrival on the bench of judges who would lack sufficient democratic and rights-oriented credentials as they originated from new Contracting States. Lord Browne-Wilkinson, for example, thus warned in 1997 against a strict observance of the Court's case law: ‘I have found the jurisprudence of the European Court of Human Rights excellent, but a major change is taking place. We are now seeing a wider range of judges adjudicating such matters, a number of them drawn from jurisdictions 10 years ago not famous for their observance of human rights. It might be dangerous to tie ourselves to that ...’.³⁷ And another prominent British lawyer lamented, in a somewhat condescending manner: ‘The point, unfortunate but inescapable, is that the decisions of a court with this enlarged membership [from Central and Eastern Europe] are unlikely to win greater respect in this country for the principles embodied in the Convention’.³⁸ At the same time, in some British circles the concern was raised that the new judges recruited from CEE would be too ‘anti-establishment’, a position deemed to increase ‘what was perceived as an unacceptable narrowing of the national margin of appreciation in the Court's decisions’.³⁹ Some suggested that this would not necessarily result in an overall lowering of the standards, but rather in the creation of varied standards of protection. Stone Sweet and Keller thus wonder: ‘In the context of enlargement, can the Court maintain consistent standards of rights protection, or is the emergence of a two-track Europe inevitable?’⁴⁰

Apart from the concern about the lowering of standards, the prospect of enlargement also raised legitimate fears about the effectiveness of the system. The latter, indeed, has always been tied—as is the case of any adjudication model based on traditional international-law mechanisms—to the political will of Contracting States. The main challenge was thus to develop normative standards whose effectiveness would not rely on the express consent of the concerned States and yet which, at the same time, could be supported by sufficient political will. The relative homogeneity of the Contracting States was a crucial factor of success in this endeavour. As Judge Rudolf Bernhardt of the European Court observed:

The main reason for the effectiveness of the European Convention and the Court is the considerable measure of homogeneity among European states. ... [T]here is a feeling among the member states that there exists a common European standard and that this standard should be further developed.⁴¹

Without such homogeneity, the search for a ‘common European standard’ seems doomed to failure, and the likelihood for effectiveness very low.

The concerns about the lowering of the standards were partly triggered by a high degree of leniency in exercising ‘conditionality’ in the admission process. To a certain extent (and here I am drawing a deliberately sharp distinction for the sake of comparison) the CoE conditionality was the reverse of that applied for accession to the EU. The latter operated on the basis of a full incorporation of the acquis communautaire as well as a comprehensive fulfilment of all the other conditions of membership (in particular, of the so-called political conditionality codified in the Copenhagen conditions).⁴² This conditionality was driven by the awareness that once a State has acceded to the EU, there are scant means of disciplining its members, especially in the areas of political democracy and respect for human rights. On the contrary, in the case of the CoE, the less-than-ready applicants were let in—on the basis of a principle that it is better to have a troublesome country in than out. Only then was the process of bringing a member fully up to standards (through political pressure exercised by the Committee of Ministers and through the judicial means operated by the Court) envisaged and hoped for. The admission therefore amounted less to the certification that a State is a full rights-respecting democracy and more to an incentive to carry out the necessary reforms, in the hope that the State would catch up with European standards when effectively subject to various supervisory, monitoring and judicial mechanisms within the CoE. Some experts even refer to the ‘therapeutic’ function of the accession,⁴³ or to the evolution of the CoE from a ‘club of democracies’ into a ‘training centre’.⁴⁴

This process thus resulted in a number of clearly controversial admissions. The set of political conditions for admission was articulated as ‘presuppos[ing] that the applicant country has brought its institutions and legal system into line with the basic principles of democracy, the rule of law and respect for human rights’, including ‘[g]uaranteed freedom of expression and notably of the media, protection of national minorities and observance of the principles of international law’.⁴⁵ Few of the CEE applicants admitted in the early 1990s could claim such a record—if any. It certainly was hardly the case of Russia (it hardly is the case of Russia at the time of writing)⁴⁶ when it applied for membership in 1992, and when it was eventually invited to join the CoE in 1996, or with Romania in 1993, or with Croatia in 1996. Whether the therapeutic theory has been validated and verified by an improvement in the State's behaviour, is a matter for controversy. The dominant view is that, overall, it was a success, though there are also strong voices arguing the contrary, including, in particular, Peter Leuprecht, a long-standing high official of the Council of Europe. According to him, this policy of lowering the standards for admission of CEE States has been ‘incoherent and unprincipled’.⁴⁷ He argues that on the whole, it has harmed the Council, as it has not brought about any visible improvements in the member states concerned, while it has devalued the ‘certificate’ of democracy which membership in the CoE traditionally conferred upon its member states. Or, in the words of another observer, ‘given that perhaps the most attractive prize in the gift of the Council of Europe is membership itself, conceding it at an early stage in a process of democratic transition risks legitimating an inherently unsatisfactory state of affairs’.⁴⁸ It has been noted, moreover, that the strongest leverage the organisation has on its applicants/members is at the pre-admission stage and not exercising it thus amounts to a huge political waste of resources and opportunities.⁴⁹

Whether Leuprecht and other critics of the policy of enlargement are right or not is something that cannot be pursued here. What matters for our argument is that this perception of a lowering of the standards applied in the CoE has clear and multiple implications when assessing the role of the ECtHR as a central pillar in the CoE system. First, this perception is triggered by the dramatic expansion of the subject-matter of the caseload ‘downwards’—towards the most rudimentary and basic violations of rights. Secondly, it is triggered by bringing into the range of ‘European’ standards a number of countries with as-yet backwards patterns of legal articulation and protection of rights—thus making the search for consensus much more difficult than before. And third, it is triggered by bringing on the bench individual judges whose credentials as exponents of the most refined and sophisticated human rights jurisprudence may be seriously questioned.

	3. The ‘Pilot Judgments’ and the Hutten-Czapska Saga

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
A. Before the ‘Pilot Judgments’

A traditional perception of the status and reach of the ECtHR's judgments was that they carried a purely individualised, specific implication. The Court was perceived as a kind of tribunal of last resort, whose role was limited to specific cases of rights violations after the exhaustion of all domestic remedies. According to this view, it did not fall on the Court to assess the validity of domestic laws themselves. Its policing role was strictly restricted to the consideration of acts and decisions rather than to the laws allegedly underlying the latter.

However, this traditional perception was never completely accurate. Indeed, drawing a sharp distinction between bad decisions and bad laws (‘bad’ in light of the rights enshrined in the Convention as interpreted, at various points of time, by the Court) is not very credible. For instance, when deciding on an alleged breach of Articles 8–11, once the Court has ascertained that the challenged decision was taken on the basis of a ‘law’ (which is the first tier of analysis, as required by the clauses providing for legitimate limitations of those rights), the two subsequent tiers scrutiny inevitably involved at times a critical analysis of the law itself. ‘At times’—because the scrutiny could have proceeded along the lines ‘good law—bad decision’ (for instance, an incorrect proportionality analysis conducted by a domestic court on the basis of a law which provides for the possibility of a proportionality test). And this is, indeed, how the Court's decisions have most often been structured. And yet, at other times, an inevitable implication of the scrutiny of a decision was that the legal defect lay deeper than in the domestic court's reasoning, namely, that the sources of the defect resided in the domestic law itself.⁵⁰ And the Court has on occasions admitted this explicitly—long before the so-called ‘pilot judgments’. When, for instance, the government of a country having a law containing discriminatory provisions against children born out of wedlock objected that ‘it is not the Court's function to rule in abstracto on the compatibility with the Convention of certain legal rules’, the Court responded tersely: ‘Article 25 ... of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it’.⁵¹ The fact that, well before the concept of pilot judgments was coined, a number of the Court's rulings related to the breach of rights led many States at various times to amend their own domestic legislation, in explicit or implicit response to the Strasbourg Court's judgments, is the best proof, if one needs one, that the scope of the Court's decisions went well beyond the simple condemnation of an individual domestic judicial decision. As recounted by one of the current judges of the European Court:

There have been numerous situations in which violations of the Convention resulted from the content of the State legislation and not ‘only’ from the incorrect application of that legislation by courts or administrative agencies. In such situations, the Court has never hesitated in identifying the real source of individual violations; sometimes undertaking quite abstract assessments ... .⁵²

But this was always carried out cautiously, without explicitly stating the systemic nature of the problem. Until the pilot judgments, the Court resorted to a shrewd legal drafting technique by disguising the fact that it was the law which often was the target of its scrutiny. Indeed, the consideration of the more general, systemic directives was placed in the ‘reasoning’ part of the judgments, while the operative part of the judgments focused strictly on the individualised violations. So, in the eyes of the States, the Court's legitimacy relied largely on a tacit (and sometimes, not-so-tacit) assumption that the Court would not interfere with the democratic processes of the Contracting States which resulted in a given legislative choice, but, rather, that it would provide enlightened leadership to the national courts which may occasionally fail to properly interpret their domestic legislation and national Constitutions fully in accordance with the Court's authoritative interpretation of the rights enshrined in the Convention. The inadequacy of this approach became finally evident with the new arrivals into the CoE system where it clearly appeared that many problems were not so much due to occasionally erring courts but rather have to do with the substance of the laws themselves. The hypocrisy of the traditional ‘good law—bad decision’ could no longer be maintained with a straight face.

In institutional terms, the direct trigger originated in the political branch of the CoE. In 2004, the Committee of Ministers adopted a resolution and a recommendation which provided the political ground for future pilot judgments. The Resolution invited the Court ‘to identify in its judgments ... what it consider[ed] to be an underlying systemic problem and the source of that problem, in particular when it [was] likely to give rise to numerous applications ...’.⁵³ In turn, the Recommendation adopted conjointly was addressed to member states and pointed out that, in addition to individual remedies, States have a general obligation to solve the problems underlying the violations found.⁵⁴ The Court was more than happy to take up the invitation and act accordingly, as is evident from its own case law, and from the eagerness with which it communicated to the world its own self-enhanced role by the device of coining a new category of judgments, somewhat awkwardly dubbed ‘pilot judgments’.

B. The Hutten-Czapska Saga

In the following section, I will discuss, in some detail, one of the first pilot judgments,⁵⁵ namely Hutten-Czapska v Poland.⁵⁶ To render more vividly certain aspects of the case, namely, the complex interaction between the European Court, the domestic constitutional court (in this instance the Constitutional Tribunal of Poland) and the domestic legislature, I will present a stylised description divided into a sequence of ‘acts’, leading up to, and including, the Court's judgments.

But first, the background of the case should be briefly sketched. Polish legislation on rent control, for various historical reasons, placed restrictions on the amount of rent chargeable and limitations on the termination of leases, even as concerned tenants who did not comply with the terms of the contract. In effect, the restrictions placed on rent did not allow landlords to recover the full costs of maintaining their properties. After the fall of Communism, the government was faced with a situation whereby there was a very limited housing stock for rent, and much of that housing stock was in a poor state of repairs. In 1994, legislation was adopted in an attempt at providing better conditions for the creation of a market of private renting of property, and therefore a more favourable market-based economy for landlords. These measures did not, however, go far enough and there were challenges to the legislation that put an unfavourable cap on the amount that landlords could claim in compensation for repairs.

This case concerns the constitutionality of this governmental intervention on the rights of landlords. The details were the following. The applicant family used to own a family house. After the World War II, the house was assigned to an individual, A.Z., by the Communist regime. This happened as early as 1945, and there began a long and protracted effort by the applicant and her family to recover the property, which was rightfully hers. Eventually, in 1990, the Gdynia District Court awarded the property to the applicant who then began the task of attempting to recover the various rooms in the house, which had been leased during the Communist era. The applicant's attempt to evict the tenants was thwarted by a court's decision in 1992. Part of her difficulty stemmed from the legislation of 1948 and 1974 (and then, of 1994), which grants considerable rights to tenants—and impedes any eviction attempts by the landlord. In fact all the attempts undertaken by the applicant to get the previous decisions under Communist rule failed. And her situation persisted whereby she had been awarded a house but with all the tenants from the communist times still living there.

(i) Act I: the Constitutional Tribunal enters the stage
On 10 January 2000, the Constitutional Tribunal found that those provisions of the 1994 Act which sought to restrict and regulate the rent were unconstitutional as they amounted to an inadmissible limitation on property rights. It deemed amendments in the legislation necessary.

(ii) Act II: first law reform
In light of this decision, the new legislation was put in place in June 2001. The new Rent Act provides for some circumstances where the landlord can increase the rent—when the flat or property has in some way been reconstructed—but maintains significant restrictions on rent increases and limits on termination of leases.

(iii) Act III: the Constitutional Tribunal re-enters the stage
The Ombudsman made an application to the Tribunal arguing that this new legislation still failed to enable the landlords to adequately recover costs for maintenance and other work carried out on the property, and therefore, violated the constitutionally recognised right to property. In October 2002, the Tribunal agreed with the Ombudsman, and declared that the 2001 Act had not improved the situation for the landlords as it has introduced an inadequate system of control of rent increases, and had, moreover, owing to the changing economic circumstances, significantly reduced any possibility of increasing the rent to cover expenses incurred by them in connection with maintenance.

(iv) Act IV: second law reform
The government of Poland proposed some amendments to the Rent Acts in 2004 with the intention of implementing the above decision of the Tribunal. In December 2004, the parliament passed the amendments which attempted to develop a scheme of capping rents—and provide a package of measures for the landlord.

(v) Act V: European Court of Human Rights enters the scene
On 22 February 2005 the case of Hutten-Czapska was heard by the Fourth Section of the ECtHR. The applicant argued that the system introduced by the Rent Act of 1994 had imposed a series of tenancy agreements on her and set an inadequate level of rent which amounted to a continuing violation of her right to the enjoyment of her possessions, and therefore breached Article 1 of Protocol No. 1 to the Convention (the right to property). The Court briefly dealt with the two first tiers of its usual scrutiny, conceding both that this legal interference of the Polish government had respected the principle of lawfulness, and also that given the prevailing socio-economic conditions as regards housing, it had aimed at securing an equitable arrangement between landlords and tenants, and had therefore been carried out in the pursuit of a legitimate aim. However, under the proportionality test, the Court—in the same vein as the assessment made earlier by the Constitutional Tribunal itself—found that the government had failed to set an adequate balance between the interests of the landlords and that of the tenants so as to guarantee an equitable system of landlord rights. The Court then found Poland in breach of Article 1 of Protocol No. 1. A striking feature in the judgment—apart from a meticulous account of a complex legal and social situation—is that it contains extremely long and unreservedly approving quotations from all the relevant decisions pronounced by the Constitutional Tribunal until then.⁵⁷ In its ‘General conclusions’, indeed, not only did the Court refer again to the Constitutional Tribunal's judgment pronounced five years before, but it explicitly reprimanded the government for not remedying the problem ‘in line with the Constitutional [Tribunal's] judgments’.⁵⁸ It then likened the situation to that prevailing in the Broniowski case,⁵⁹ hailed by the Court as a ‘pilot case’, because in both cases ‘general measures at national level were called for’.⁶⁰ Further, just as in the Broniowski case, where the number of individuals affected by the legislative scheme was extremely high (about 80,000), in this instance about 100,000 landlords and between 600,000 and 900,000 tenants, were deemed to be affected, and thus ‘the principles established in the Broniowski case app[lied] equally to the present case’.⁶¹

(vi) Act VI: the Constitutional Tribunal enters for the third, fourth and fifth time
In the meantime, the 2004 legislative reform package was challenged in front of the Polish Constitutional Tribunal by the Polish Union of Property Owners in early 2005. And again the main argument put forth seemed to be that the control over private rent infringed the constitutional principles of protection of lawfully acquired rights over property. It was contested by the Polish tenants association, which claimed that the landlords had exaggerated the amounts needed to maintain and restore their property. In its 19 April 2005 judgment, the Constitutional Tribunal decided to repeal two important provisions of the amended Act restricting rent increases, and—more importantly—its decision relied upon a comprehensive social, political and economic survey of the Polish housing situation. Interestingly, it already referred to the ECtHR's judgment of 22 February of that year (‘Act V’ above), and it recognised that the European Court's opinion provided additional arguments to conclude that the law violated both the constitutional principles of the rule of law (confidence in the State and the law) as well as ECHR standards on the protection of property.

In June 2005, the Constitutional Tribunal involved itself in the normative debate on this issue, by producing a set of recommendations or guidelines (in Polish: sygnalizacja) as to how a more equitable and less antagonistic relationship between landlords and tenants could be achieved. Subsequently, in May 2006, in response to an application by the Ombudsman, the Constitutional Tribunal declared a number of provisions of the 2001 Act unconstitutional—in particular, those on rent increases.

(vii) Act VII: European Court enters for the second time
On 19 June 2006, in response to an application by the government of Poland, the Grand Chamber of the ECtHR considered the Hutten-Czapska case, and concluded again that there was a violation of Article 1 of Protocol No. 1. It confirmed all the points and legal arguments of the Fourth Section, and again, quoted very extensively and approvingly the Constitutional Tribunal's judgments pronounced since the Fourth Section judgment. Interestingly, the Grand Chamber referred to, and quoted, the passages of the Tribunal's decision, which relied explicitly on the Fourth Chamber's judgment.⁶² Hence a complex combination of mutually referential and self-reinforcing judgments, with the Fourth Section relying on earlier Tribunal decisions to hand down a judgment, and the Constitutional Tribunal relying partly on this judgment, and the Grand Chamber referring to the Tribunal's reference to the Strasbourg Court! A real symbiotic relationship, if ever there was one.

The status of this case as a ‘pilot judgment’ is reinforced in the judgment itself, in a passage worth quoting at length because it will be important to the argument further developed in this article:

This kind of adjudicative approach by the Court to systemic or structural problems in the national legal order has been described as a ‘pilot-judgment procedure’. ... The object of the Court's designating a case for a ‘pilot-judgment procedure’ is to facilitate the most speedy and effective resolution of a dysfunction affecting the protection of the Convention right in question in the national legal order. One of the relevant factors considered by the Court in devising and applying that procedure has been the growing threat to the Convention system resulting from large numbers of repetitive cases that derive from, among other things, the same structural or systemic problem ... . Indeed, the pilot-judgment procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned their Convention rights and freedoms ... offering to them more rapid redress.⁶³

Two important dissents, by Judges Zagrebelsky and Zupani, are attached to the judgment, and will be examined below.

(viii) Act VIII: the Constitutional Tribunal enters for the sixth and the seventh time
Two more decisions of the Constitutional Tribunal followed: one (of 17 May 2006) triggered by the Ombudsman's application, and another (of 11 September 2006) in the process of a ‘concrete review’, in response to a ‘legal question’ by a district court. A number of specific provisions of the 2001 Act were repealed. Especially in the first judgment, the Tribunal seized the opportunity to reiterate the critical assessment it had made of the existing legal framework in its 2005 Recommendations, related in particular to the lack of the statutory elements of the definition of ‘rent’, and the failure to cite some of the relevant factors (such as the costs of repairs and maintenance) that would justify rent increases.

(ix) Act IX: the Parliament acts again
The legislator started then acting more decisively, by passing several statutes. First, on 8 December 2006, an act on financial assistance for ‘social accommodation’ set out conditions for obtaining financial assistance from the State for the construction of houses for the homeless and those less well-off. This statute was deemed to resolve partly the problem, by providing a legal framework to help poor tenants. A week later, on 15 December, the Parliament adopted a general amendment to the 2001 Act on the protection of the rights of tenants, which, importantly, contained a new statutory definition of the expenses incurred for the maintenance of a rented dwelling, as well as new and much more liberal provisions on rent increases, and also a new rule providing for the civil liability of municipalities for failure to supply a social accommodation to a protected tenant. This legal framework was deemed to have answered much of the critical assessments emitted at the judicial level, both in Warsaw and in Strasbourg, up to that point.

(x) Act X: the European Court enters the third, and the last time
On 28 April 2008, the Court decided to strike the case off the list—a normal procedure after a friendly settlement has been reached. Such settlement had been agreed upon by the parties in Warsaw in February of that year. The Court noted all the judicial and legislative developments after its Grand Chamber judgment, and included in the judgment the Friendly Settlement which noted that the restrictions of landlords’ rights in Poland had constituted a breach of Article 1 of Protocol No. 1, and observed that the obligations incumbent on the Polish government were not limited to the specific situation of Mrs Hutten-Czapska, but that it had to undertake general measures for all landlords. In its own Declaration, the government of Poland listed a number of comprehensive measures it had undertaken, in particular the law of December 2006, which contained ‘conditions enabling landlords to receive market-related rent’.⁶⁴ In its own assessment, the Court noted all those measures with approval, and consequently decided to strike the case out of its list. A long section of the judgment was entitled ‘Implications of the pilot-judgment procedure applied in this case’⁶⁵ and the Court seized this occasion to reaffirm its new doctrine: ‘[I]in view of the systemic character of the shortcoming at the root of the finding of a violation in a pilot judgment, it is evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand’.⁶⁶ Again, a very significant dissent by Judge Zagrebelsky (joined by Judge Jaeger) was attached.

C. The Lessons of Hutten-Czapska

One obvious feature of the Hutten-Czapska case is the explicit and constant ‘collaboration’ between two courts—the European and the national—in criticising the domestic legal framework, and in bringing the legislative and executive branches of the State to a more-or-less complete compliance with the standards of rights protection shared by both courts. One can speculate that, should the national court have not been so active in denouncing, over the years, the failures of the legal framework, the ECtHR may not have adopted such a grandiose rhetoric of ‘pilot judgment’ in finding a systemic defect in the national law. A similar—even though less intricate—pattern of judicial alliance against the national legislature can be found in the first ‘pilot judgment’: Broniowski v Poland.⁶⁷ In both Broniowski and Hutten-Czapska—as in the other pilot-judgments so far—a form of division of labour seems to occur: the constitutional court deals with a general constitutional dimension, while the ECtHR focuses on a concrete case.⁶⁸ But it is thanks to the generalisation provided by the constitutional court that the traditionally individualised assessment carried on by the Strasbourg Court could eventually be elevated to a more general level, enabling the ECtHR to identify ‘systemic’ problems. And it is largely thanks to this constitutional framework of analysis provided earlier by the constitutional court that the ‘systemic’ considerations of the pilot judgments did not appear (to most of the judges, at least) as exceeding the European Court's realm of legitimacy. To a certain extent, one could argue that the national constitutional court provided the grounds of legitimacy for the ECtHR in its pilot judgments rationale.

It is hard to find a more fitting example to illustrate the phenomenon of ‘piercing the veil of the State’⁶⁹—an expression pointing to the disaggregation of States into their different constitutional branches, and to alliances that are formed with one of the branches to castigate another. This is what Helfer and Slaughter identified as a characteristic of supranational adjudication: a supranational tribunal's ‘ability to penetrate the surface of the state’,⁷⁰ and the resulting ‘move away from the fiction of the unitary government’.⁷¹ As they observe, ‘stripping the State of its unitary façade creates the possibility of direct relationships between the [supranational] tribunals and different governmental institutions such as courts, administrative agencies, and legislative committees’.⁷² This is, of course, precisely what happened in Broniowski, Hutten-Czapska, and more generally, whenever the ECtHR collaborates with a national court against the national executive or legislature. This may be seen as anathema to a traditional idea of sovereignty whereby States present themselves to an international entity and to each other as uniform, homogenous units. But this traditional picture is particularly inappropriate when the protection of human rights is at stake: a citizen has only to gain from this ‘disaggregation’ when some of the domestic bodies are more favourable to an expansive interpretation of his/her rights than others. In such cases, the intervention of an international body which ‘takes sides’ with one of the national institutions against another may be a crucial element of a rights-supportive strategy.

As I have suggested earlier, the ‘revolution’ triggered by the pilot judgments lies more in the rhetoric and structure of the judgment than in reality. Indeed, the fiction according to which, before its pilot judgments, the Strasbourg rulings dealt with specific cases, and not with the law, was just that: a fiction. On several occasions, the Court reminded the States Parties that ‘in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it. Consequently, it is for the respondent State to remove any obstacles in its domestic legal system that might prevent the applicant's situation from being adequately redressed’⁷³—though, as a matter of rhetoric and structure of the judgment, it avoided placing the general, systemic recommendations in the operative parts of its decisions. However, the rhetoric and drafting strategy have their own important effect: they are a good indicator of the decision-maker's intentions, and especially, of the self-perception of the decision-maker. If the Court can now announce that it is authorised (even compelled) to identify systemic defects in a legal system and to prescribe major legislative changes, its self-perception as a ‘constitutional’ court of sorts is quite clear.

Or is it? Even quite apart from the vigorous opinion by Judge Zupani explicitly denying the constitutional character of pilot judgments, which we will look at in a moment, it is interesting that, in the context of pilot judgments the Court never uses explicitly ‘constitutional’ language. The central reason provided by the Court to support its use of a pilot-judgment approach is that of docket control: an admittedly much more pedestrian rationale than a grandiose constitutional transformation of the Court itself.⁷⁴ At least this is what the Court tells us in its first pilot judgment, Broniowski, when it grabbed the opportunity suggested to it by the Committee of Ministers to discern ‘systemic’ problems:

[The measures adopted [by the respondent State] must be such as to remedy the systemic defect underlying the Court's finding of a violation so as not to overburden the Convention system with large numbers of applications deriving from the same cause. ... Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers, to take, retroactively if appropriate ..., the necessary remedial measures in accordance with the subsidiary character of the Convention, so that the Court does not have to repeat its finding in a lengthy series of comparable cases.⁷⁵

So, in the authoritative statement of the Court itself, it is the spectre of the ‘lengthy series of comparable cases’ which lay at the heart of the matter.

But this rhetorical damage control is less than fully convincing,⁷⁶ and the legitimacy of the ECtHR in challenging the national legislation, even when acting in a course already facilitated by a national court's intervention to issue ‘pilot judgments’, is never stable and non-controversial. That the European Court should be entering a risky path is well evidenced in the biting dissents of Judge Zagrebelsky. In his (partly) dissenting opinion to the 2006 judgment (‘Act VII’ above), he emphasised a ‘horizontal’ problem (my words, not his), and in his separate opinion (joined by Judge Jaeger) to the 2008 judgment on friendly settlement (‘Act X’ above), he pointed to a ‘vertical’ problem. Taken together, these critical assessments constitute a powerful challenge to the legitimacy of the Court when issuing pilot judgments. In the first dissent, Judge Zagrebelsky thus focused on the balance between the Court and the political branches of the CoE system. According to him, when the Court indicates the need for the State to amend its own legislation in order to solve a general problem affecting other individuals than the applicant, it is usurping the role of the Committee of Ministers, and exceeding its tasks as set by Protocol No. 14 of the Convention.⁷⁷ In particular, the part of the judgments outlining the nature of the general measures to be undertaken by the Polish State prompted him to consider that the Court ‘is entering territory belonging specifically to the realm of politics’. He deems, as a result, the judgment to be ‘undermin[ing] the relationship between the two pillars of the Convention system—the Court and the Committee of Ministers—and entrust[ing] the Court with duties outside its own sphere of competence’.⁷⁸ In turn, in his second dissent, he focused on the ‘vertical’ problem—i.e. the relationship between the Court and the Contracting State: ‘The Court is not competent (and does not have the necessary knowledge) to express a view in the abstract and in advance on the consequences of the reforms already introduced in Poland and to give a vague positive assessment of a legislative development ...’.⁷⁹

But even putting to the side the fundamental concerns of Judge Zagrebelsky, can we indeed draw a connection between the trend marked by ‘pilot judgments’ and the hypothesis of a ‘constitutionalisation’ of the ECHR system? It is significant that the main judgment of the Grand Chamber in the Hutten-Czapska case produced a separate opinion by a judge who explicitly raised this question, only to rebut any allegations as to such a connection.⁸⁰ Judge Zupani defends the idea of pilot judgments against Judge Zagrebelsky's objections, and he claims that they do not represent a ‘qualitative jump’ in terms of the binding erga omnes effect nor in terms of the generality of the judgment.⁸¹ Referring to the first pilot judgment, Broniowski, Judge Zupani indicates that, if the pilot judgment scheme had not been adopted, ‘there would have been 80,000 cases pending before the Court’, and the Court would have to react by mechanically reiterating, in a ‘copy-paste’ manner, the Broniowski ruling 80,000 times.⁸² So this is, for Judge Zupani, not a matter of principle but a ‘simple and pragmatic’ question.⁸³ Broniowski, Hutten-Czapska etc. are merely ‘practical and pragmatic decisions—akin to class-action judgments—that avert an increase in the quantity of cases ...’.⁸⁴ And here comes the connection with the idea of constitutionalism: ‘The Court clearly does not have, with the usual paraphernalia of constitutional law, an interest in meddling in what national legislation should or should not do. ... This is the role rightly reserved for national constitutional courts. ... We are not and cannot be constitutional court for the 46 countries concerned’.⁸⁵

But one has an impression that Judge Zupani protests too much. He is connecting the ‘binding effect erga omnes’ issue with that of constitutionality by implying that such an effect (binding erga omnes, constitutional) would occur if the judgment were formulated in abstracto and if the Court were saying ‘that a particular piece of national legislation that had been the cause of the case before us was incompatible with the Convention, or in other words ‘un-conventional’’.⁸⁶ But this is, so it seems to me, precisely what the Court is saying, although not in so many words. By reproducing, in great lengths, and fully approvingly, the long passages of the Polish Constitutional Tribunal's judgments of unconstitutionality of the Rent Acts, including the developments referring to Protocol No. 1 of the Convention,⁸⁷ the European Court is effectively endorsing, echoing and amplifying the Tribunal's judgments of unconstitutionality and ‘un-conventionality’. And, more significantly, the operative part of the judgment, in Parts 3 and 4, amounts for all practical purposes to the ‘meddling in what national legislation should or should not do’, to use Judge Zupani's words. Part 3 links the violation of the Convention with the ‘systemic problem connected with the malfunctioning of domestic legislation’. Even if the use of the word ‘malfunctioning’ may create an impression that it is not the law itself but rather its bad application which is the problem, the further specification of what this ‘malfunctioning’ consists of removes any doubts as to what really is at stake: domestic legislation, the Court observes with disapproval, ‘imposed, and continues to impose, restrictions on landlords’ rights, including defective provisions on the determination of rent’.⁸⁸ Now clearly this defect is not about the wrong application of a good law but is inherent to the law itself: restrictions on landlords’ rights and the limits on rents which can be charged are intrinsic elements of the statute itself and, as the history of the legislative practice described in the judgment manifestly shows, no amount of good will and tinkering by law-enforcers could improve the situation as long as the law remains in force. Furthermore, as put forth by the ECtHR, the second troubling aspect of the domestic legislation was the following: ‘it did not and still does not provide for any procedure or mechanism enabling landlords to recover losses incurred in connection with property maintenance’.⁸⁹ Again, this is obviously a fundamental omission in the law itself rather than a result of a bad administration of the law.

So much for the protest of Judge Zupani that his Court has not taken on the role of a ‘negative legislator’.⁹⁰ As for the positive part of the ruling, the Court held, in Part 3 of the operative part, that ‘in order to put an end to the systemic violation identified in the present case, the respondent State must, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interests of the community, in accordance with the standards of protection of property rights under the Convention (see paragraph 239 above)’.⁹¹ Now paragraph 239, to which the ruling refers, develops the concept of ‘the interests of the landlords’ to include ‘their entitlement to derive profit from their property’, and the general interests of the community as including ‘the availability of sufficient accommodation for the less well-off’. The exact and peremptory character of these directives is manifest. The Court is not only saying what exactly is wrong with the law in question, it is also stating how, through legislative changes, it should be remedied in order to bring it in line with ‘the standards of protection of property rights under the Convention’.⁹² Now if this does not amount to saying that ‘a particular piece of national legislation ... [is] incompatible with the Convention’,⁹³ then it is really hard to see what would.

Finally, Judge Zupani undertook the heroic task of depicting the Court's ruling as amounting solely to a recommendation. In a nice piece of judicial rhetoric, Judge Zupani likens the substance of Broniowski to the following message: ‘Look, you have a serious problem on your hands and we would prefer you to resolve it at home ...! If it helps, these are what we think you should take into account as the minimum standards in resolving this problem’.⁹⁴ It sounds great when thrown into a judicial opinion but it is emphatically not what the Court said in Broniowski (or later in Hutten-Czapska for that matter). The language of the rulings is stern, peremptory and imperative, none of the ‘hey, if you want our advice, here it is, but feel free to do what you want’. It rather says what the Polish State ‘must’ do (‘in order to put an end to the systemic violation ... the respondent State must ... secure in its domestic order a mechanism ...’),⁹⁵ no ifs or buts.

No wonder that another judge of the same Court, writing extra-curially, observed that one of the main characteristics of a pilot judgment is that it ‘constitutes not a mere recommendation but a command, at least in respect of those of its components included in the operative part of the judgment’.⁹⁶ So it seems that under Judge Zupani's own test about what would render the Court ‘constitutional’ or operating ‘with the usual paraphernalia of constitutional law’, the Court moved precisely in this quasi-constitutional direction in Broniowski and Hutten-Czapska. And it did so explicitly by departing from a purely individualised justice limited to prescribing in a mandatory way a just remedy to a particular victim of a violation of the Convention towards a generalised justice in which a State is required to reform its law and practice in response to the finding of a violation by the Court. Thus, the Court ‘behaves more as a general and prospective lawmaker than as a judge whose reach is primarily particular and retrospective’.⁹⁷ As I had suggested earlier, there was an element of the ‘judging of the law’ that has always occurred in practice, but never before was it so stark, visible and explicit as in the pilot judgments.

D. The Reasons for Pilots and Semi-Pilots

Of course, not all ‘pilot judgments’ so far have been issued in cases originating from CEE. Some time after Broniowski, the Court found, in a case against Italy, that the violation of Article 6 had originated in a ‘systemic defect’ connected with the ‘deficiencies in national law and practice’,⁹⁸ using thus a key word -‘systemic’- indicating a pilot judgment. There were other cases, around the same time, also originating from Italy, which identified ‘systemic problem[s]’.⁹⁹ But there was a subtle and yet significant difference with the ‘Polish’ cases (Broniowski and Hutten-Czapska): in all the Italian cases, the Grand Chamber (in contrast to the chamber judgments) has chosen carefully to place the ‘systemic situation’ or ‘systemic problem’ language in its reasoning on the merits, but decided not to include its findings in the operative parts of the judgments. This, at first glance subtle and perhaps pedantic difference, seems to be important enough, at least for one of the most thoughtful current judges of the Court to emphasise, in an article, that in the ‘Italian’ cases ‘the Court seems to show a certain restraint in applying a Broniowski-like pilot-judgment procedure, i.e. a procedure in which both the identification of a systemic violation and the call for general measures are included in the operative part of the judgments’.¹⁰⁰ No such ‘restraint’ was shown in Broniowski and Hutten-Czapska: the systemic violations found, and the general recommendations aimed at comprehensive law reform, were placed fairly and squarely in the operative parts, using an exact and peremptory language, as we have just seen. In contrast, (what can be called) semi-pilot-judgments,¹⁰¹ such as Sejdovic and Scordino (each against Italy), show more continuity with the pre-pilot-judgments era when, as we had noted before, the Court also had identified defects in the legislation, albeit without using a new code-word ‘systemic’ (or its synonyms).

Why would the Court decide to use, at times, the ‘full’ pilot-judgment procedure, and at other times, show more ‘restraint’, notwithstanding the existence of a ‘systemic’ problem? The sample of full- and semi-pilot judgments is probably still too small to warrant any serious generalisation, but the reasoning of Judge Garlicki, writing extra-curially, provides interesting material. In his brief discussion of the post-Broniowski developments, he supplies two criteria which may legitimately cause the Court to opt for a full, unrestrained pilot-procedure. First, he says, such a procedure ‘can and, perhaps, should be applied in all situations in which the Court comes to the conclusion that other, less convincing, means of persuasion would not appear effective’.¹⁰² Second, such a procedure ‘may also be quite useful in situations where, in a Member State, a stalemate among the proponents and the opponents of a Convention-friendly solution of a problem arises. The judgment of the ECtHR may then serve as an additional argument and tip the balance in the right direction’.¹⁰³

To take the second point first, this is, as we have just seen, exactly what happened in Hutten-Czapska: the lengthy, drawn-out confrontation between the Constitutional Tribunal and the legislature about the landlords’ rights fits nicely the description of a ‘stalemate among the proponents and the opponents of a Convention-friendly solution’. The decisive intervention of the ECtHR could thus be deemed to have tipped the balance in the direction of the Constitutional Tribunal. When no such confrontation between the domestic institutions can easily be ascertained, such a constitutional-style intervention of the European Court may be ineffective or, worse, counter-productive (that is, by provoking a backlash against such interference from Strasbourg). But the first criterion provided by Judge Garlicki is even more intriguing: the full pilot-judgment procedure may be a sort of means of last resort, an act of desperation, when the Court has no confidence that other ‘means of persuasion’ (that is, a traditional Strasbourg approach of individualised justice) may be effective. This is very revealing, and convincing. When the Court has no reason to trust the State that it will get the message after a gentler, more habitual signal from the Court, it will abandon traditional subtleties and display no restraint: it will no longer disguise its condemnation of the legislation in the language of individual violation. Significantly, such a lack of trust was expressed in that way towards one of the new CoE Member States—and no wonder.

Judge Zagrebelsky's warning about legitimacy is not forgotten—but at least for some judges the reasons for imperative intervention may be so strong that the fear of a loss of legitimacy of the Court seems misplaced in those cases. According, again, to Judge Garlicki:

Other States [than those towards which a full pilot-judgment is addressed] in other situations may show more hesitation as to the scope and manner of [Strasbourg Court judgment's] implementation. This may put at risk the very authority of the Strasbourg system. The legal basis of pilot judgments remains relatively fragile ...¹⁰⁴

So there must be something about the Contracting States towards which a full pilot judgment procedure is applied that convinces the Court that it can afford to abandon its traditional doctrines and behave in a more constitutional mode. What is it?

For one thing, the special circumstances (pointed out in the first argument of Judge Garlicki) which suggest that such a strong intervention is necessary in order to effectively compel the State to do something. Second, the existence of an ‘ally’ in the Contracting State in the form of, as in Hutten-Czapska, the domestic constitutional court (Judge Garlicki's second point): this greatly reduces the likelihood of the legitimacy-based objections that could be raised by the Contracting State. Third, the Court must believe that, in addition to having an ‘ally’ in the form of a constitutional court, the administrative and legislative structures of the State concerned are such that the pilot judgment is likely to be implemented. The Court, as the last quotation from Judge Garlicki's article suggests, has a degree of trust in the State concerned, by and large, as a loyal player in the ECHR system, and not only in its constitutional court: otherwise it will not risk making a bold claim that structural measures are needed, only to risk that its directives will be roundly ignored by the State. After all, Russia has many structural and systemic problems about its law, and yet only one ‘pilot judgment’ has been handed down in a case originating from Russia—and that, only very recently.¹⁰⁵ The only explanatory reason for this apparent reticence to use the pilot-judgment procedure more frequently with respect to Russia is that, in the view of the Court, Russia does not offer a likely promise of implementation of a pilot judgment, so more traditional, individual-justice rulings are normally handed down in Russian cases. Indeed, even in the case of ‘traditional’ judgments of the Court, there is a vast zone of non-implementation on the part of Russia, which seems to strengthen the opinion that pilot rulings would fall on deaf ears if issued vis-à-vis Russia. So, to put it boldly, pilot judgments are likely to be made when a situation in a country is bad enough to warrant a finding of a structural problem but not as bad as to render the implementation of the structural remedy by the country's legislative and administrative branches unlikely, compromising the Court's legitimacy in the process.

But, I would claim, there is also a fourth chief factor: those Contracting states have structural, ideological and political reasons to accept the European quasi-constitutional adjudication without much protest and questioning. This may explain why—apart from the ‘semi-pilot judgments’ originating from Italy, there have been no pilot judgments regarding ‘old’ Contracting States, even when the legal situation on the ground would seem to justify such an approach. For example, when one considers the string of ECtHR decisions concerning the UK, and regarding non-availability of widow benefits for men,¹⁰⁶ one may be excused for thinking that the problem lent itself well to the pilot-judgment treatment: the cases were of the same nature, there have been repetitive findings of violations showing that there is a systemic problem, etc.¹⁰⁷

In Part 3, I shall return to consider the reasons why CCE represents such an attractive area for the use of pilot rulings. For the time being it suffices to note that the two first decisions of this type, that is, ‘full pilot judgments’, and the ones which articulated the nature of pilot judgments most comprehensively, did originate from a Central European State (Poland). Surely, this is not merely a temporal coincidence. After all, the political stimulus for this move, exemplified by the Commission of Ministers’ Resolution and Recommendation of 2004,¹⁰⁸ was clearly a response to the enlargement of the CoE. One can see a logic in this connection: the generality of the judgment, accompanied by a strongly peremptory tone, is a response to the entrance into the Council of new Member States, many of which have some fundamental, systemic problems in their legislation (at least in light of the standards of the Convention) compared to the established democracies. The gravity and scope of the problems—as exemplified by Broniowski and Hutten-Czapska—result in a practical erosion of the margin of appreciation doctrine, at least in those cases. To be sure, in abstract terms the Court reaffirmed the margin of appreciation doctrine as applying to the transitional, post-communist States:

This logic [of the margin of appreciation] applies to such fundamental changes of a country's system as the transition from a totalitarian regime to a democratic form of government and the reform of the State's political, legal and economic structure, phenomena which inevitably involve the enactment of large-scale economic and social legislation.¹⁰⁹

However, no practical use was made of the margin of appreciation in pilot judgments, and in core parts of its reasonings the Court sternly rebutted the Government's reliance on the margin of appreciation. As a result, there is not a great ‘margin’ that a State (the Polish State, in this case) is left with in light of the operative rulings 3 and 4 of the judgment, as quoted above, which are addressed to it.

The link—between the enlargement and the reduction of the margin of appreciation—has probably been best articulated by Judge Martens in his famous concurrence in the Brannigan case:

The 1978 view of the Court as to the margin of appreciation under Article 15 was, presumably, influenced by the view that the majority of the then members of the Council of Europe might be assumed to be societies which ... had been democracies for a long time ... . Since the accession of Eastern and Central European States that assumption has lost its pertinence.¹¹⁰

Patronising though it may sound, this thinking has no doubt affected judges, other lawyers and legal commentators about the need to abandon a more lenient, deferential attitude to Contracting States with the accession of States whose democratic credentials could not be taken for granted.

	4. Contrasting Approaches to ‘Strasbourg’

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
Pilot judgments are perhaps the most visible, but not the only, way in which the enlargement of the Council of Europe to the East prompted a ‘constitutionalisation’ of the Convention system and in particular of the Court. They are but one of the symptoms of the more general transformation of the Court which moved from the role of a ‘fine-tuner’, oriented mainly at the dispensation of individual justice and operating largely at the fringes of rights, to a much more central role, that is, that of an arbiter called upon to act when some quite fundamental breaches are asserted, and setting up some general and quite significant legal principles—including on such central aspects of a democratic state as restrictions on political parties,¹¹¹ eligibility to run in parliamentary elections,¹¹² etc. This affects not only the CEE Member States, of course, but the entire CoE community of democratic States. It is not what many of the original founders hoped for, and not something that they must necessarily appreciate. As one commentator aptly put it, for example, the French and British drafters of the Convention ‘comfortably assume[ed] that the ECHR was merely a Europeanisation of their own national practices of respectively libertés publiques and civil rights’.¹¹³ The perceived activism of the Court, enhanced by the arrival of ‘anti-establishment’ judges from CEE, was observed with concern in the UK where a possible narrowing of the margin of appreciation was feared.¹¹⁴ So while the enlargement set the stage for an important evolution of the Court itself, the effects were not necessarily welcomed by everyone in the club.

In turn, the transformation of the nature of the decisions themselves, with cases dealing with more serious violations, and therefore requiring more ‘systemic’ solutions, helped to dispel the traditional viewpoint according to which the role of the European Court is limited to repairing malfunctions in the administration of the law, and does not tackle with the law itself. This traditional view, never particularly convincing, was definitely put to rest, most spectacularly by the ‘pilot judgments’, but also more generally by all those judgments which were meant to lead—and did lead—to legislative changes in the Contracting States concerned, and through a more precedential and generalised value of the Court's judgments, in other States as well. This law-judging function of the Court makes it more obviously ‘constitutional’ than when the fiction of its role as a sort of super-appellate European Court tasked with finding violations in individual judicial and administrative decisions in the Contracting States was maintained.

The constitutional turn of the ECtHR has not encountered universal support in the Western part of the Continent. In his recent article, Nico Krisch puts together compelling evidence of a certain resistance towards the authority of the ECtHR by several West European countries: Spain, France, Germany, Austria, etc. As Krisch concludes, ‘domestic courts [in these countries] insist on the ultimate supremacy of their own legal order over European human rights law, and they have thus created a zone of discretion in deciding whether or not to respect a judgment of the ECtHR ...’.¹¹⁵ The reasons for this ‘insistence’, in my view, are not hard to understand.

First, the founding members of the CoE may feel a sort of ‘ownership’ over the ECHR framework. As mentioned earlier, originally, the system was far from the supranational and quasi-constitutional character it now displays: at the foundation stage the States considered, and rejected, more ambitious supranational schemes, and embarked upon a classical international design, giving primacy to diplomatic measures over the directly applicable judicial ones. For example, in the case of France, it corresponded to its general mistrust against a supranational control in the arena of ‘public liberties’ and its general preference for diplomatic rather than supranational measures in the field of international law. The British approach was not dissimilar. More generally, Mikael Rask Madsen observes that ‘the postwar universalisation and Europeanisation of human rights ... was far from free from conventional strategies of safeguarding national sovereignty and interests’.¹¹⁶ So the recent constitutional tendencies may be seen as a departure from, or worse, a betrayal of, the design to which West European democracies agreed to in 1950. (Another symptom of departing from the original, international-law based design to a model of an autonomous supranational tribunal is a massive under-use, bordering on non-existence, of the interstate procedure under Article 33 of the Convention: the disproportion between the practice of interstate procedures as compared to individual petitions is striking).¹¹⁷

Second, there may be a legitimate feeling among many of the West European States, especially among their executive branches and bureaucracies, that they have not much to learn from the other European States (and certainly not from the recently democratised ones) in the domain of human rights: France with its proud tradition going back to the Declaration of Rights of Man and Citizen, the United Kingdom with its commitment to common law as the paramount guarantor of individual liberty, Germany with its strong dignity-based constitutional rights forged as a response to the horrors of the Third Reich and subsequently consolidated by the progressive case law of the Karlsruhe Court, etc. And they do not necessarily look to Strasbourg to learn how to protect their citizens’ rights. Or at least, they do not feel that they need to. Hence there is a certain degree of complacency, on the part of lawyers from West European States about the consequences of joining the ECHR. As a leading UK constitutional lawyer commented in the early 1960s: ‘The rights and freedoms there proclaimed [in the ECHR] were, to a very large extent, already recognised in English law—not as formal constitutional or statutory guarantees but as residual rights, liberties and immunities of the individual’.¹¹⁸ This attitude is partly a matter of self-satisfaction (perhaps even arrogance) and partly of well-founded feeling that, at times, complying with supranational human-rights adjudication may result in a lowering rather than an improvement of the standards of protection of human rights. An Italian legal scholar Massimo Luciani provides an example of freedom of commercial information: in the case law of the Italian constitutional court it is interpreted as part of economic freedoms and is given only a limited protection, while the ECtHR articulates it as part of freedom of expression and thus awards it a much higher level of protection.¹¹⁹ Professor Luciani thus concludes: ‘It is clear that the introduction of the Strasbourg court case law in Italy would have a consequence of enriching the protection of rights only in an illusory way considering the severe implications it would have towards the protection of privacy’.¹²⁰

The unreserved incorporation of supranational case law as binding in a domestic system may often be perceived, justifiably, as not taking into account local traditions and understandings (this is the concern which lies behind the doctrine of margin of appreciation). Consider the Spanish case of Moreno Gómez,¹²¹ which raised the issue of whether high noise level is a violation of a constitutional right of privacy. The Spanish Constitutional Court was rebuked by the European Court which found a violation of Article 8, notwithstanding the Spanish Court's view to the contrary. But the national court's approach may be well appreciated ‘in a rather noisy country where tolerance levels are high’.¹²² (A similar earlier case, also originating from Spain, concerned the effect of environmental pollution: the ECtHR found a violation of Article 8,¹²³ while earlier the Spanish Constitutional Court had refused to consider it as a violation of constitutional rights). As a leading Spanish constitutional lawyer and President of the Council of State noted, the right to environment proclaimed by the Spanish Constitution is not classified as a ‘fundamental right’ and thus does not give rise to a ‘recurso de amparo’.¹²⁴ This line of cases caused a degree of criticism in Spain. As Francisco Rubio Llorente complained, ‘the decisions of the ECtHR condemning Spain are generally interpreted [in Spain] as a disavowal of national judges, whose authority is therefore weakened’.¹²⁵

Yet another example of a different balancing of competing values involved in the proportionality test can be provided by the divergence between the European Court and the German Federal Constitutional Court in the famous case regarding Caroline of Monaco:¹²⁶ the European Court found that in the balancing of the protection of the right to privacy (Article 8) versus the freedom of the press (Article 10), the German Court had improperly privileged the latter because the published photographs did not ‘come within the sphere of any political or public debate’,¹²⁷ and also criticised the characterisation of Caroline of Monaco as a public figure when ‘the interest of the general public and the press [in her] is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions’.¹²⁸

One can understand that in cases such as these, reasonable people may disagree about the proper balancing of such competing values in specific contexts, and share the frustration of national judicial (and other) institutions about the supranational tribunal's eagerness to overturn the national judgments on such fine distinctions and weighing and balancing. That is why in much of the commentary originating from Western Europe there is a strong degree of scepticism about the primacy of ECtHR law over domestic constitutionalism, based on a by-and-large high confidence in the domestic level of protection of human rights. In addition, Western Europeans like to point out that domestic constitutional protection enjoys a higher degree of democratic legitimacy as it can be modified and amended more easily, through democratic means, than the European Convention.¹²⁹

None of these considerations, which would warrant a degree of ‘resistance’ towards the constitutional turn of the European Court from the original members of the CoE, apply to its new Contracting States, and especially those from CEE.

First, they are late joiners; they have not had any input in the original design so in no way can they feel a sense of ownership over the original framework. They have acceded, on a ‘take it or leave it’ basis, with no opportunities for exemptions, reservations or opt-outs, and with the full awareness that the Court had, at the point of their accession, long embarked on a ‘living instrument’ approach of the Convention, interpreting it in light of its own understandings of the changing standards of human rights. So there is no room for disappointment, frustration, and protest that what you see is not what you get.

Second, CEE states have hardly a reason to believe that they are there to teach, not to learn. After many decades of authoritarian Communism, with its total neglect for individual rights and for democratic process, the Europeanisation process of these transitional States involved a steep learning curve. The main purpose behind the accession to the CoE, and one of the main reasons for joining the EU, was to consolidate those democratic gains which have been achieved after the ‘round tables’ in Poland and Hungary, the ‘velvet Revolution’ in (then) Czechoslovakia, or the dramatic riots in Romania, etc. ‘Consolidation’ was the mot d’ordre: democratic changes were at first unstable, endangered by the slide into nationalistic or populist authoritarianism, unprotected by deep constitutional and institutional reform, and most dangerously, they could not be entrenched more broadly in a democratic political culture. One way of making the changes more resilient was to back them up with international—and mainly European—supports: not so much with the idea that foreign influences would counter authoritarian temptations, but rather that they would provide the necessary support for domestic democratic and liberal evolutions and trends. And in Western Europe's point of view, the democratisation of CEE was seen as the best guarantor of stability and peace in the Continent—a lesson well confirmed by the Balkan dramas. Elsewhere, I have discussed at some length this democracy-consolidation aspect of the accession to the European Union;¹³⁰ this can be evidenced even more strongly with the accession process to the ECHR system.

Thirdly, public opinion and legal and political elites in CEE countries were only very slightly—if at all—concerned about the effects of the supranational law of the ECHR upon their newly regained sovereignty. This contrasts greatly with the subsequent accession to the EU where the paradox of ‘surrendering sovereignty’ only a few years after regaining it was much more evident, and triggered strong anti-accession protests, mainly from nationalistic parties and movements. This may have accounted partly for a relatively low support for accession to the EU in at least some of the CEE countries. But the situation with the Council of Europe and the ECHR system was very different: not only because of a more obviously inter-governmental nature of the Council and a less ‘intrusive’ character of the ECtHR than that of the ECJ, but mainly because of the specificity of the CoE portfolio. If there is one obvious domain in which the concerns about national identity and the accompanying notions of sovereignty are particularly weak in CEE, it is in the area of protection of individual rights, be they civil and political, or socio-economic.¹³¹ The legacy of the Communist era during which individual rights were crushed, is still fresh in many people's minds. In those days, ‘intervention’ from outside—in diverse forms ranging from official State policy (for example, under the Carter administration), through NGO actions (especially Amnesty International, the Helsinki Committee, and similar), to foreign media reports on human rights abuses in the USSR and its satellite States—was uniformly condemned by CEE Communist governments as ‘interference in internal affairs’, while it was applauded by many citizens of these States. In this context, hardly anyone (other than those acting in an official capacity) took offence at such intervention as jeopardising national identity or sovereignty. Indeed, it was often perceived as the only source of hope in an otherwise grim situation, especially in light of still poor systems of individual rights enforcement. While the constitutional texts of charters of rights are by and large satisfactory,¹³² the record in terms of administrative non-compliance is much less impressive, with inefficient and under-resourced systems of justice.

This explains why the Strasbourg Court ranks so high in the minds of the general public in CEE States, even though—as we have seen—the European Convention's system has already affected the sovereignty of European States in multiple ways, for example, by providing individuals with direct access to an independent European body to complain about their own governments, by requiring domestic (constitutional and ‘ordinary’) courts to incorporate ECtHR case law, by prompting legislatures and executives to align their laws and policies with the case law of the ECtHR, etc. Indeed, no serious and perceptible objections to these ‘violations of sovereignty’ committed by the European Court have been, to my knowledge, raised in CEE States; not on a large scale, anyway. On the contrary, at the level of civil society, ‘Strasbourg’ is often perceived as the last resort for those who claim that rights have been violated, and its emotive and symbolic significance in public imagery is unequivocally positive.¹³³

All these considerations lead to the conclusion that CEE countries have had no reasons to fear that accepting unreservedly the supremacy of European standards for the protection of human rights would result in a lowering of domestic standards: ‘domestic standards’ were viewed with mistrust and concern by local liberal-democratic elites, including the legal community, and in particular those favourable to, or recruited into, constitutional courts and their circles of advisors and friendly commentators. ‘Europeanisation’ (and centrally, the absorption into the ECHR system) was perceived, at least by those crucial segments of public opinion, as a doubtlessly good thing, and any resistance to it was viewed as triggered by anti-democratic forces, either longing for the ancien régime, or moved by populist, nationalistic and authoritarian motives. In fact, ‘Europeanisation’ through joining the CoE might have been seen as a good strategy of ‘self-binding’ by a democratic-liberal elite of the State: such self-binding, as Andrew Moravcsik claimed, is of most use precisely to the States newly emerging from non-democratic rule, because they have ‘the greatest interest in further stabilising the domestic political status quo against non-democratic threats’.¹³⁴ In light of the weak sanctions for non-compliance, and very weak incentives on individual States to put pressure on other States for compliance (as evidenced, in the case of the ECHR system, by the weakness and under-use of the interstate claims mechanism), such a ‘self-binding’ may be the best explanation for joining and staying in the CoE. This created the ground for an ideological basis conducible to full and enthusiastic embrace of ‘Euro-friendly’ legal and political approaches. To put it sharply, an ‘intervention from Strasbourg’ was seen as an important and highly appreciated additional guarantee of the correct path and irreversibility of the democratic transition.

But there is more to it than the three factors just listed: the lack of ‘ownership’ over the ECHR system, the lack of conviction that a country may lose, not only gain, from accepting unreservedly Strasbourg intrusions, and the lack of concern as to the loss of sovereignty that would result from the alignment with the ECHR system. One of the most important institutional factors was the incentive on the constitutional courts of the region to build a strong alliance with the ECtHR in order not only to pursue their ideological visions of progressive development of human rights, but also in order to build institutional capital to protect themselves in their confrontation with powerful executives and legislatures in their own countries. I have described above the way in which, in the case of the ‘pilot judgments’, a close link was built between the constitutional courts and the ECtHR in order to enhance the legitimacy of the European Court's ‘meddling in what national legislation should or should not do’ (to use Judge Zupani's words).¹³⁵ But this alliance has also a powerful significance in the domestic realm, and not only in Strasbourg: it is a formidable asset gained by the constitutional court which is no longer lonely and helpless in its confrontation with the political branches of the State. And, as it happens, such an asset is badly needed. The last years, in particular, have witnessed some tough attacks launched by the Presidents, governments or the leaders of legislative majorities against constitutional courts in various States of the region.

For instance, the Polish Constitutional Tribunal was targeted as a major enemy by the governing elite which came to power after the double elections of 2005 (presidential and parliamentary), and as an obstacle to the allegedly pressing reforms that the new elite intended to pass.¹³⁶ Indeed, after the 2005 political handover, the Tribunal took several decisions which went clearly against the plans and preferences of the new President and government.¹³⁷ These decisions placed the Tribunal on a collision course with the new President, the parliamentary majority and the government. And the then Prime Minister Jarosaw Kaczyski warned of changes in the system of appointment of judges (in particular, of the Tribunal's President), both as a threat and in order to discipline the Tribunal.

The Czech Constitutional Court has been also going through turbulent times in recent years. For a much longer period than its Polish counterpart, it has had to face the openly hostile attitude of the executive and the parliamentarians alike. The conflict reached its apex after Vaclav Klaus became President in 2003 and basically blocked the Constitutional Court's functioning by not appointing new judges. At one point (in 2004), due to this non-appointment, the Court lost its power to decide on the constitutionality of laws because the number of justices had fallen below twelve, which is the minimum number to declare laws unconstitutional.¹³⁸ When President Klaus eventually formally nominated his candidates, he did it by deliberately avoiding any prior consultation with the Senate, effectively ensuring that they would not get sufficient support (the judges of the Court are appointed by the President ‘with the consent of the Senate’): by the end of 2005, the Senate had rejected seven nominations. After the Constitutional Court found unconstitutional a dismissal of a Supreme Court President, Klaus denounced the Constitutional Court decision as ‘an example of judicial corporativism’ [sic] and a ‘threat to democracy’. The general public opinion often seemed to be supporting the President in this contest.

My third example is the Romanian Constitutional Court—admittedly not the most activist of the courts in the region—which has been regularly under fire of the main political actors for taking decisions which are not to their liking. When, in 2005, the Court struck down as unconstitutional several key aspects of the law reforming the justice system,¹³⁹ Prime Minister Calin Popescu Tariceanu accused it of obstructing the reform process necessary for the accession to the EU, and threatened to resign and call for early elections (he subsequently dropped this idea). Following this, some politicians implied that a number of judges were in a position of conflict of interests. Even harsher criticisms and accusations of conflicts of interest (including those made by Prime Minister Tariceanu) were launched when, in November 2005, the Court struck down a number of provisions of parliamentary standing orders.¹⁴⁰ In such an atmosphere it was not surprising that, in February 2006, a leader of one of the main political parties should call for the abolition of the Constitutional Court.¹⁴¹

So as one can see, many constitutional courts in the region are in a politically precarious position, and being aligned with a prestigious and powerful European tribunal, endowed with a high degree of legitimacy derived from States’ international obligations, may appear to be a God-sent gift in domestic contexts of vulnerability and conflict. In a recent study, I explored the attitude of some leading CEE constitutional courts towards the principle of supremacy of EU law. I suggested that the attitude of ‘resistance’, in a Solange-like fashion, to the supremacy of EU law over the constitutional laws of nation-states can be at least partly explained by domestic inter-institutional relations in new Contracting States.¹⁴² For constitutional courts, placing themselves in the position of guardians of the degree of transfer of sovereignty to the EU considerably strengthens their own position vis-à-vis the legislature and the executive. It is clear that, from the point of view of the strength and scope of constitutional courts’ authority, the choice of a proper balance in the relationship between national and European law is not a neutral matter: a strong national sovereignty principle strengthens the role of constitutional courts while the acceptance of the absolute European supremacy rule weakens it. By accepting the supremacy of EU law, national courts would effectively cede their authority as the guardians of constitutionality to the ECJ where the principle of supremacy applies.

What is perhaps less obvious is that this reliance on the national supremacy rule in the context of EU law strengthens the courts’ position on two fronts: vis-à-vis the European Court of Justice, and also vis-à-vis the other national institutions, including the legislature and the executive. By reaffirming their own role as guardians of European-national relations, national constitutional courts thus reinforce their own position vis-à-vis the parliament (for example, by directing it to adopt a constitutional amendment, with the decision of the Polish Tribunal on the European Arrest Warrant as a case in point)¹⁴³ or vis-à-vis the government (by instructing the administration how far it can go in the domains covered by European competence: the Czech decision on sugar quotas is an example here).¹⁴⁴ Both are very important prerogatives. The power to determine that a particular matter requires a constitutional amendment gives the courts a role, which was once described by Louis Favoreu as that of a ‘pointsman’ (l’aiguilleur).¹⁴⁵According to this theory, a judgment of unconstitutionality ‘merely’ amounts to finding a lack of competence of the ordinary legislator and a directive to follow a constitutional path: indeed, the prerogative is that of the pouvoir constituant rather than that of the pouvoir constitué. This is a formidable role—that of the guardianship of when the constitutional track needs to be taken to adopt a decision on a particular matter. The constitutional amendment procedure is of course costly and often risky, especially where the governing majority cannot muster a constitutional-change majority. In effect, this prerogative provides the court with an ability to shift political resources from the governing majority to the parliamentary opposition. The second prerogative (to rebuke the administration for overstepping its competences) consolidates the court's position as the main guardian of the separation of powers and as a regulator of the actions undertaken by the executive. In terms of a purely domestic power game, deciding on the status of the European supremacy rule is therefore a valuable and effective asset for constitutional courts to enhance their position vis-à-vis other domestic political actors.

Therefore, the relations between national constitutional courts and EU law must be explored by taking into account not only their ‘vertical’ dimension but also a ‘horizontal’ one. Mutatis mutandis such an institutional analysis may apply to the subject-matter of this article, that is, to the relationship between national constitutional courts and the ECHR system—but in this case, ‘mutandis’ describes something very vast. Indeed, national constitutional courts do not need to resist the leading role of ECHR law in order to build their institutional capital—as is the case with EU law. Indeed, for courts to simply accept the supremacy of EU law over national constitutional law, would amount to rendering themselves largely redundant. But the manner in which ECHR law operates vis-à-vis Contracting States is different, and even the primacy of ECHR law over national constitutional law (including over national constitutional adjudication) will not render constitutional courts unnecessary. On the contrary, the requirement of exhaustion of national remedies (with constitutional complaint, wherever it is available, considered one of the remedies that need to be exhausted before bringing a case to Strasbourg) indicates that the constitutional court will always retain its role, without any fear that it will be diminished by the ECtHR.

Most importantly, national constitutional courts do not need to consider the ECtHR as a rival in adjudicating on the relationship between domestic and European law—in the way in which they may legitimately regard the ECJ. The principles of supremacy and direct effect of EU law trigger a competition about who is the ultimate umpire when EU law seems to collide with national constitutional law. But no such collision needs to occur between the domestic courts and the ECtHR. There is no way in which the ECtHR might ever declare a national constitutional law or practice to be inconsistent with the law of the Convention with such an assessment having a direct effect; there is no way the ECtHR may declare a statute ‘unconventional’ (inconsistent with the Convention) with the direct effect of invalidating the statute. So the ECtHR has no—alleged or real—powers, which may ever intrude upon the constitutional courts’ most cherished functions. Furthermore, domestic lower courts have no direct access to the ECtHR, compared to the direct access they may have to the ECJ, via the procedure of preliminary references. Constitutional courts do not need therefore to fear becoming marginalised, or isolated, on this account.

To conclude, in the ‘vertical’ dimension there is no analogy between the courts/ECJ relationship and the courts/ECtHR relationship. In turn, in the ‘horizontal’ dimension, the best way for constitutional courts in their inter-institutional rivalry with other branches of the State is to ally themselves with the ECtHR, and try to build a common front against the legislature or the administration. The support provided by the ECtHR is an important asset in the institutional capital of these courts—without the liabilities which would be engendered in the case of a partnership by placing themselves in an awkward situation as regards the principle of national sovereignty. As suggested above, when human rights are at stake, in contrast to the typical realms of application of EU law, such sovereignty objections would carry very little weight. Constitutional courts thus have no incentives to resist the Convention law and in particular the partnership with the ECtHR, and on the contrary, many reasons to promote such a partnership.

	5. Partnership with Strasbourg: CEE Approaches

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
There are many other ways in which constitutional courts engage in a partnership with the ECtHR—and, for reasons just mentioned, CEE constitutional courts have particularly high incentives to do so. In turn, the ECtHR has incentives to be engaged in this partnership as well because it strengthens its legitimacy vis-à-vis the Contracting States. Thanks to the ‘piercing of the veil of the State’ process, the ECtHR cannot be accused of usurping a role well beyond the scope of the functions devolved to it by Contracting States. In the following remarks, I will briefly outline some of the models of such partnership.

First, and this is perhaps the least surprising, CEE constitutional courts very frequently refer to the judgments of the ECtHR in their decisions.¹⁴⁶ It is often a purely perfunctory, ritualistic rhetoric—but even the rhetoric has its consequences. It maintains the presence of the European Court in the official discourse, it enhances its own legitimacy in the eyes of public opinion and political actors, and it sends a message of partnership to domestic and external audiences. As a Hungarian legal scholar notes, the references to the ECtHR's case law ‘advanc[e] the Constitutional Court's legitimacy at home and further ... its reputation abroad’.¹⁴⁷ It might also be a matter of a national judge's personal reputation: as observed by a judge of the Polish Constitutional Tribunal, the failure to comply with the ECtHR's case law in the Tribunal's judgment would no doubt risk being recounted and denounced in a dissenting opinion attached to the judgment. It would also be considered ‘unprofessional’ by the legal community.¹⁴⁸ There is clearly a sense of ‘noblesse oblige’ in aligning oneself with the ECtHR.

Second, the references to the judgments of the ECtHR serve as an argument to support the domestic judgment. It is rarely, if ever, used as a sole and independent argument, but often as an auxiliary argument (to support the domestic court's ruling) or an interpretive aid in construing the national constitution. According to prevailing doctrine, the constitutional court will follow the ECtHR's case law when the Strasbourg doctrine is more rights protective than the established domestic constitutional level of protection. However, if the constitutional court establishes that the domestic constitutional case law provides for a higher level of protection, it will usually not refer to the ECtHR. The more rights-protective level thus prevails. So there seems to be something of a ‘ratchet’ mechanism at play: an appeal to the ECHR (and the Court case law) will automatically result in an improvement of the protection.

Third, constitutional courts occasionally change their own established case law in order to comply with the ECtHR's case law. In the case of CEE countries which joined the ECHR system when it already had a reasonably solid acquis, this may be easier to do than in the case of the constitutional courts of countries which built themselves along the ECHR system for several decades. As an example, consider the Romanian Court's about-face: after it ‘discovered’ the ECtHR case law on the scope of the right of the accused to be represented in court in absentia, it moved away from its earlier stance and decided that the prohibition for the accused to be represented in his absence (provided for in the criminal code) was not a guarantee but rather an unjustified restriction on the right of the defence.¹⁴⁹

This is the theory—but reality may occasionally be less bright. There is a problem of relative ignorance of the ECtHR's case law, though such ignorance is admittedly more prevalent at the level of lower, ‘ordinary’ courts than at the level of ‘elite’ constitutional courts.¹⁵⁰ And there are occasional cases of dissonance between the ECtHR's case law and that of the constitutional courts. One example is provided by Romania: even though the ECtHR has at least twice specifically found violations of the Convention in the Romanian rules giving the public prosecutor extensive quasi-judicial powers and powers regarding pre-trial detention,¹⁵¹ the Constitutional Court subsequently upheld the constitutionality of the provisions.¹⁵² Surprisingly (and non-typically), it was the legislature which eventually brought the Criminal Procedure Code in line with the Strasbourg decisions, greatly reducing the powers of the public prosecutor. This stand of the Romanian Court was dubbed by a Romania legal scholar, perhaps with some exaggeration, ‘[t]he rebellion of the Constitutional Court of Romania against the European Court of Human Rights’, and a violation of Romania's international obligations.¹⁵³

In the end it should be stressed that the interaction of the kind at play in the Hutten-Czapska case may occur between the national court and the ECtHR without culminating in a pilot judgment, and yet very significantly undermining an authoritarian policy or the law which does not properly protect individual rights. Consider the case of Bczkowski—a particularly significant case because it illustrates well a symbiosis and indeed, mutual reliance and reinforcement, between the decisions of a domestic court and the ECtHR in their partnership against an illiberal political action. The case originated from the ban issued by the Mayor of Warsaw, Lech Kaczyski (who subsequently became President of Poland) of a gay parade (‘Equality Parade)’ to be held on 12 June 2005. The ban was officially based on the Road Traffic Act, which was eventually struck down in January 2006 as unconstitutional by the Constitutional Tribunal, in so far as assemblies were concerned. In a long and very liberal decision,¹⁵⁴ the Tribunal developed a broad interpretation of the right to assembly as part of the constitutional freedom of expression, the implication being that the State has the obligation to refrain from hindering its exercise and to ensure that it is enjoyed by various groups despite the fact that their views may not be shared by the majority. Consequently, only the registration of an assembly rather than authorisations or licences issued by the State should be required. Importantly, the Tribunal's judgment cites several decisions of the ECtHR in order to announce these ‘generally accepted rules’:¹⁵⁵ that the threat of a counter-demonstration must not be used as an argument to justify the restriction, that the burden of guaranteeing the security of demonstrators rests upon public authorities, that the permission to hold a demonstration is separate from acceptance of the message of the assembly, etc.

In the meantime, the case also went to the ECtHR (the application was filed a month before the Tribunal's judgment, and was declared admissible in December 2006), which rendered its decision in May 2007.¹⁵⁶ The Court found a violation of three provisions of the Convention: Articles 11, 13 (in conjunction with Article 11) and 14 (also in conjunction with Article 11). On the crucial violation, that is, that of Article 11, the Court rested its judgment on the first prong of its standard three-tier scrutiny, namely that the restriction of the right was not ‘prescribed by law’ because the ban on the parade was subsequently (but before the Constitutional Tribunal's decision) found unlawful by two local authorities in Warsaw.¹⁵⁷ Hence, there was no need to scrutinise the legitimacy of the aim and the necessity of the interference. Importantly, the Court referred positively to the Constitutional Tribunal's judgment, which was described very approvingly and in some detail.¹⁵⁸

There is at least one other interesting point where the European Court went beyond the Tribunal's argument. When discussing the violation of Article 14 (non-discrimination), the Court commented on the ‘strong personal opinions publicly expressed by the Mayor [of Warsaw] on issues directly relevant for the decisions regarding the exercise of the freedom of assembly’.¹⁵⁹ These ‘strong personal opinions’ are evidenced by some mildly shocking statements made by Mr Lech Kaczyski in an interview to a leading Polish daily in May 2005, and were quoted at some length in the ECtHR's judgment itself. Their tone is well summarised by this response of the Mayor to a question raised by the journalist: ‘Is this correct that the exercise of people's constitutional rights depended on the views of powers that be?’—‘In my view, propaganda of homosexuality is not tantamount to exercising one's freedom of expression’.¹⁶⁰ Having noted that the Mayor expressed these views while the request to hold a parade had already been submitted to the municipal authorities, subordinate to the Mayor, the Court concluded that ‘his opinions could have affected the decision-making process ... and, as a result, impinged on the applicants’ right to freedom of assembly in a discriminatory manner’.¹⁶¹ This is quite an unusual rebuke (by ECtHR standards) of a politician feeding anti-gay prejudices and hostility. It certainly adds to the force of the reiteration, made earlier by the domestic Tribunal, of the scope of the freedom of assembly: by referring to public political statements, it emphasises the importance of political speech as a potential device of discrimination, as it had clearly triggered the political action in this case.

	6. So is the European Court of Human Rights Constitutional?

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
In the writings about the ECtHR, various standards of what makes up a constitutional court are used, and depending largely on those different standards, different conclusions are reached. Most fundamentally, two different—indeed opposite—views on what counts as the ‘constitutional’ character of the Court are noticeable in the literature. There are those, on the one hand, who take the view that a constitutional court is characterised by the fact that it operates, so to speak, in the penumbrae of the legal system, with the role of a fine-tuner of legal rules.¹⁶² Typically, though not only, it is revealed in the fine balancing used in the proportionality test—arguably not relied on to dismiss fundamental political choices but rather to correct specific choices made in the complex weighing and balancing of competing values in a particular context. And, on the other hand, there are those who believe that constitutional courts serve to intervene on the very basics of the legal system, and to strike down only the most egregious forms of legal and political wrongs.¹⁶³

Both of these views carry some weight. The strength of the first approach—that of the constitutional court as a fine-tuner—rests on a concern with legitimacy or, to use the American parlance, desire to avoid ‘counter-majoritarian difficulty’. If the role of the Court is confined to corrections at the margins, for which lawyers may be well qualified, then no major clash with the principles of representative democracy need occur. Fine corrections of, for example, defamation standards or rules relating to the rights of a criminal defendant may well be entrusted to a body composed of eminent lawyers, even if their democratic pedigree is only indirect, and they need not—indeed, must not—operate under the pressure of current societal preferences. In turn, the strength of the second approach also draws on the legitimacy question but in a different way: it relies on the view that judicial constitutional review is an emergency procedure, employed when routine democratic mechanisms fail, and when legal aberration is so egregious that extraordinary, non-majoritarian devices have to be employed.

The problem with the choice of one or the other conception of what accounts for the ‘constitutional’ character of a court is that, in the end, such choice is made on intuitive, ‘inductive’ grounds: we identify a court, or a number of courts, which we intuitively consider undoubtedly ‘constitutional’, and then generalise their characteristics to establish criteria of constitutionality. And yet, in our specific context such method does not bring any determinate results. Indeed, paradigmatically ‘constitutional’ courts engage both in fine-tuning and in intervention in (what they consider to be) egregious violation of basic rights. If one selects, for example, the Supreme Court of the US as a paradigmatically constitutional court of the system of concrete review, and the German Federal Constitutional Court as an iconic constitutional court of the abstract model, one can find confirmation for both criteria. No doubt, they have massively and most of the time engaged, over their institutional lives, in subtle fine-tuning. But they have also intervened on the basics. Thus, the United States Supreme Court struck down, as unconstitutional, racial segregation in schools,¹⁶⁴ criminal prohibitions of abortion (at certain stages of pregnancy),¹⁶⁵ and state aid to parochial schools,¹⁶⁶ while in turn the German Court outlawed the liberalisation of abortion law,¹⁶⁷ or frustrated the attempts at university reform.¹⁶⁸ These have been quite fundamental policy choices, and it would not do them justice to describe them as an exercise in fine-tuning.

So we should look elsewhere for the criteria of a constitutional court, if this description is to have a useful function of helping us ascertain—or deny—the constitutional turn of the ECtHR. But perhaps first a preliminary question should be answered: is the European Convention a constitution?¹⁶⁹ After all, a commonsensical point can be made—and has been made¹⁷⁰—that there can be no constitutional court unless there is a constitution. But what are the criteria for a document to have a constitutional nature? Joseph Raz's set of material criteria of a constitution is very useful. As argued by Raz, a constitution in a thick sense of the word is: (1) constitutive of the legal and political structure, (2) stable, (3) written, (4) superior to other laws, (5) justiciable, (6) entrenched, and (7) expresses a common ideology.¹⁷¹ A moment's reflection suffices to realise that all these criteria lend themselves to judgments of degree, rather than yes-or-no characterisation (including the ‘written-ness’, as each constitution has also its unwritten, customary part). Hence, there may be more or less of a constitution in the thick sense of the word. The European Convention seems to fare very well under criteria (2), (3), (6) and (7): it proved very stable; it is written (and it is written in a formulaic fashion characteristic of constitutional texts and lending itself to direct application without any further need for ‘translation’), it is well entrenched (in the sense of being difficult to change),¹⁷² and it aspires to expound a common liberal-democratic ideology of human rights. Whether it is constitutive of a legal or political system (criterion 1) is more difficult to affirm: it is surely a cornerstone of the mechanism of protection of human rights within the CoE, but in itself it is preceded by the Treaty of London of 1949¹⁷³ setting up the Council and its political bodies. It is also—compared to ‘normal’ constitutions—very fragmentary, as it does not cover many of the items normally regulated by constitutions. Whether it is superior to other laws and justiciable (criteria 4 and 5)—depends on our assessment of the Court itself, and therefore has to be postponed for a moment. So far, under all the remaining criteria we can perhaps ascertain that the Convention is largely though not fully constitutional.

What about the European Court then? In order to assess its constitutionality, under criteria (4) and (5) of the thick understanding of the term ‘constitution’, I suggest a very simple, perhaps primitive, criterion of what renders a court constitutional: it is its power and authority to declare lower laws unconstitutional, and to strike them down or set them aside. The advantage of the use of this criterion—in addition to its being, in my view, intuitively convincing—is that it allows us to avoid the dilemma of ‘fine-tuning versus fundamental intervention’, discussed above. This power to declare laws unconstitutional gives effect to criteria (4) and (5) of Raz's set of indicia of ‘thick’ constitutions. A court which has that power makes the constitution effectively superior to other laws (criterion 4) and manages this superiority through the mechanisms of judicial review (criterion 5). (These, of course, are two independent criteria: we may have a constitution effectively superior but not justiciable, when the superiority is effectively and properly secured by political mechanisms).

If we rely on this standard, we will probably conclude that the European Court is not fully constitutional, in a way in which, say, the US Supreme Court or the German Federal Constitutional Court are constitutional. It, literally speaking, does not have the power and authority to strike down any national law on the basis of their inconsistency with the Convention. The judgments of the ECtHR do not have the immediate effect of eliminating the legal validity of the laws which the Court finds defective: it is for the political branches of Contracting States to draw their own conclusions on the basis of the Court's decision finding a violation in their country, or in another Contracting State. Their duty to implement the Court's decisions is ultimately of an international law character: it is a treaty-based obligation, and there are no mechanisms of enforcement to guarantee such implementation other than moral and political pressure. And the main inter-governmental bodies which are the ultimate authority behind the Court avoid using the concept of ‘supremacy’ or ‘priority’ of the Convention law over the national constitutional orders and use instead various euphemisms, such as that the Convention is ‘the essential reference point for the protection of human rights in Europe’.¹⁷⁴

But note that the question before us is not whether the ECtHR is constitutional one hundred percent. The question is, rather, whether it is more constitutional now than before (and, in particular, before the admission of CEE States to the CoE)? Just as the existence of a constitution (in the thick sense of the word) is a matter of degree, so is the ‘constitutionality’ of a court. National courts which do not have the full power of declaring a statute invalid because all they can do is to interpret the statutes in accordance with the bill of rights (as in New Zealand),¹⁷⁵ or to take the decisions which may be overridden by the parliament (as in Canada),¹⁷⁶ or which can solely make a declaration of incompatibility of a statutory provision with a higher, rights-specifying instrument (as in the United Kingdom)¹⁷⁷—are in a meaningful sense less constitutional than the courts whose decisions have such immediate and final effect, but still more constitutional than courts which cannot pronounce, even in such tentative ways, on the constitutional defects of laws at all, and which are confined only to pronounce individualised decisions on the claims brought before them.

So in the case of the ECtHR the question is about a trend—not about reaching an extreme point on the spectrum of the constitutionality of courts. And the entire evidence produced by the material contained in this article so far seems to show that the ECtHR has become more constitutional—indeed, much more—than before. It has increasingly embarked on identifying the structural defects of the laws, on which the claims brought before it rely, rather than limiting itself to finding breaches of the Convention in individual decisions taken by the judiciary or administration of a particular State. And the States increasingly seem to perceive the meaning of the Court's judgments precisely in this way: as a directive to change their laws. ‘States are routinely required to reform their internal law and practices in response to findings of violation by the Court, not simply to provide compensation to individual victims’¹⁷⁸—and States behave accordingly. The high level of compliance of this generalised law reform, rather than merely individual-remedies aspect, testifies to the fact that the Convention is now considered as more superior to the national laws (Raz's 4th criterion), and more justiciable (Raz's 5th criterion), than before. (The term ‘more superior’ is not an error because, as suggested earlier, there are different degrees of ‘superiority’ of law). And the emergence of pilot judgments is an important symbolic step on this path to a growing ‘constitutionalisation’—through effective superiority and justiciability—of the Convention, and the growing ‘constitutionalisation’ of the Court.

	7. Conclusions

Top Abstract 1. Introduction 2. The ECHR System... 3. The 'Pilot Judgments'... 4. Contrasting Approaches to... 5. Partnership with Strasbourg:... 6. So is the... 7. Conclusions

 
The democratisation and subsequent Europeanisation of CEE States raised a significant challenge to the ECHR system, a challenge which contained both a threat and a promise. The threat was the possible collapse of the system resulting from the massive growth in numbers and the correlative increase of the diversity of the system of human rights protection carefully designed in 1950 and crafted over the years to build on a consensus on rights among Contracting States and work at the margins in order to discipline occasional lapses. The jump from 23 to 47 States and the accession of States widely departing from the earlier consensus raised the issue of whether the ECtHR could adjust to its new role and adopt a more heroic role of standard setter. Merely following the existing national standards—the role for which it had been originally designed—was no longer an option, not merely due to the accession of States with widely inadequate standards on human rights (as in post-Soviet countries) but also because of the prevalence of systemic defects and malfunctions in the legal systems of some States (as in Central European states).

But this threat was accompanied by a promise: a possibility to liberate oneself from the fiction that the European Court of Human Rights does not scrutinise the objectionable laws of CoE Member States but merely corrects bad individual decisions. This fiction was pure hypocrisy in the best of times, but a hypocrisy with which both the Court and its constituency—the Contracting States—could live because it sounded like a good reconciliation of the universality of human rights with the sovereignty of national States. But ‘the best of times’ are gone, and the Court could find it salutary to announce—though not in so many words—that from now on it would review bad laws, not only bad decisions. This is a move away from an individualised justice performed by a sort of super-appellate judicial body to that of a systemic justice typically performed by a constitutional court which, be it through concrete review or in abstract terms, evaluates the compatibility of laws with higher, constitutional, standards.

‘Pilot judgments’ are an emphatic expression of this constitutional turn. One should not exaggerate their significance at this point. There are still very few of them. Some are ‘pilot’ only in a restricted and half-hearted way. Some ECtHR judges strongly dissent from the idea. And some of the judges who endorse the idea proclaim that there is nothing novel, and nothing constitutional about it. So the constitutional turn is far from being stable and emphatic. But it is unquestionably there, and it was clearly prompted by the enlargement of the CoE to the East.

Accession to the ECHR system was also a fundamental challenge to the new members themselves. In contrast to the old members, their entrance into the system coincided with (and was prompted by) the great transformation of their legal and political systems: democratisation made Europeanisation possible, and was further strengthened and stabilised by a ‘self-binding’ undertaken by the newly democratised States which joined the European structures. The ECHR both corresponded to the democratic and liberal values which underwrote democratic transitions, and also questioned much of the patterns of law, political culture and established habits. The situation of these countries thus differed greatly from that of the consolidated democracies of Western Europe. This contrast was well grasped by a British lawyer soon after the transition in CEE began:

Accession to the ECHR and incorporation of its values and standards into the domestic life of the countries of Eastern and Central Europe will not be perceived, as it was in Western Europe, as a mere reflection of pre-existing national values—but rather as a challenge which consciously has to be met with energy and vigour.¹⁷⁹

And even if the contrast sketched in this sentence is overdrawn—Western Europe is not free of illiberal and authoritarian tendencies, and democratic values are not absent from national traditions in Central and Eastern Europe—the ‘challenge’ for the new entrants is well described. In contrast to the founding members who considered the Convention as a reflection of their bills of rights, written or otherwise, the newest Contracting States have to use the Convention as a blueprint for changing their domestic instruments and practices.

This challenge was handled differently by the different countries of the region, and the decisive difference lies between East European post-Soviet countries (including Russia, but by and large, excluding the Baltic States) and the Central European States, the former satellites of the Soviet Union. The countries belonging to the latter category presented formidable structural problems in their human rights protection frameworks, but no fundamental violations of the basic rights enshrined in Articles 2 to 5 of the Convention—not, at least, on the scale discernible in Russia, the Caucasus States, Ukraine or Moldova. It is this second category that is central for the argument of this article. Central European States—all, with their ambition to join the EU strongly in mind—responded to the challenge just outlined by accepting the supremacy of the Convention and the leading role of the ECtHR, without much hesitation or second thoughts. They granted the Convention a status similar to that of the Constitution or just below it, they complied by and large with the Court's case law and used it as a blueprint for law reform, they introduced a number of legislative changes in response to Strasbourg's case law, etc. In doing so, they were not particularly troubled by ‘sovereignty concerns’ which—in contrast to state-EU relationships—have not carried much weight in the public opinion and among the leading political-legal actors, with respect to the subject-matter of the Convention.

The relatively smooth and effective absorption of Central European states into the ECHR system of protection of human rights was greatly facilitated by the ‘disaggregation’ of the state apparatus: the European Court penetrated behind the surface of a unitary state mechanism (it ‘pierced the veil’ of the state) and found powerful allies, in particular, in the constitutional courts. Those courts—plagued by their own legitimacy problems,¹⁸⁰ and often enmeshed in struggles within the domestic political arena—seized this occasion for self-empowerment merrily, and engaged in a complex interaction and partnership with the European Court in order to compel the legislatures and the administrations of their States to adopt more rights-protective policies, taking their cues from Strasbourg's case law. (As observed by a judge of the Polish Constitutional Tribunal: ‘Poland has now two constitutional courts: the Tribunal in Warsaw and the Court in Strasbourg’,¹⁸¹ and there was no sense of irritation, but rather a deep satisfaction accompanying this statement). This complex and intricate interaction is nowhere better displayed than in the first ‘pilot judgments’ where, as shown above, the European Court relied on the prior judgments of constitutional courts, and the latter in turn used the ECtHR's rulings to reinforce their pressure on domestic political actors. This created a truly constitutional dimension: a combined pressure from the domestic Constitution and the European Convention, articulated by the domestic court and by the European Court—which the political branches have found hard to resist.

This constitutional dimension is fragile and rests on unstable foundations: the European Court of Human Rights ultimately relies on the political will of Contracting States. But national constitutional case law is never much more robust, in the sense that it necessarily has to rely on the other branches of the domestic political arena for support and implementation, and always has to produce the grounds for its legitimacy. There is nothing new about the Strasbourg/national constitutional partnership in this way. What is new is that it is a partnership: an institutional link between national and European institutions and it seems to be working, as proven by the responses of the legislatures so far. But these are still early days.

	Acknowledgments

 
In the course of working on this paper I benefited from conversations with, and advice from, a number of people. In particular I wish to acknowledge invaluable inspiration coming from the current and former judges of the European Court of Human Rights and the Constitutional Tribunal of Poland: Professors Lech Garlicki, Marek Safjan, Andras Sajo, Mirosaw Wyrzykowski and Luzius Wildhaber. It goes without saying that none of them should be necessarily associated with any of the opinions expressed here. This proviso applies also to a number of other scholars who helped me in various ways: Dia Anagnostou, Samantha Besson, Adam Bodnar, Dominika Bychawska, Sara Dezalay, Alun Gibbs, Helen Keller, Magda Krzyanowska-Mierzewska, Kasia Lach, Gerald Neuman, Alec Stone Sweet, Renata Uitz and Micha Ziókowski—I am grateful to them all.

	Footnotes

 
¹ Hutten-Czapska v Poland 2006-VIII; 45 EHRR 4, partly concurring, partly dissenting opinion of Judge Zupani.

² Whenever I refer to the ‘Court’ or the ‘European Court’ in this article, I have in mind the European Court of Human Rights, unless the context suggests clearly a different court.

³ See in particular a research project which culminated in a monumental book by Keller and Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008). See also the ‘Juristras’ project funded by the European Commission entitled ‘The Strasbourg Court, Democracy and the Human Rights of Individuals and Communities: Patterns of Litigation, State Implementation and Domestic Reform’, description available at: http://www.juristras.eliamep.gr/?page_id=2 [last accessed 1 June 2009].

⁴ For example, Stone Sweet and Keller state that ‘the Convention and the Court perform functions that are comparable to those performed by national constitutions and national constitutional courts in Europe’, in Stone Sweet and Keller, ‘The Reception of the ECHR in National Legal Orders’, in Keller and Stone Sweet, supra n. 3 at 7. For an in-depth discussion of the case for ‘constitutional justice’ function of the Court, see Greer, ‘Protocol 14 and the Future of the European Court of Human Rights’, (2005) Public Law 83 at 96–104. See also Greer, infra n. 7 at 165–74, 317.

⁵ Samantha Besson's formulation, though used not specifically in the context of the ECHR, ‘The Authority of International Law’, The 2008 Annual Julius Stone Address, Sydney, 19 August 2008.

⁶ I should emphasize that I am using, for the purpose of this article, the category of ‘Central and Eastern Europe’ as an aggregate but of course I am conscious of the fact that there is great diversity within this category, and from the point of view of the problems with democracy and human rights—an issue on which I focus in this paper—the differences are enormous. Indeed some of these countries can at best be called semi-democracies, due to very strong illiberal tendencies and severely underdeveloped systems of rights protection. Those include: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Macedonia, Moldova, Montenegro, Russia, Serbia and the Ukraine. (For an excellent analysis of the ECHR role towards those semi-democracies, which include also Turkey, see Harvey, The Future of the European Court of Human Rights, (Unpublished PhD thesis, European University Institute in Florence, 2006, chapter 3 at 125–82). On the contrary, some of these countries have reasonably well-developed democratic and judicial (including constitutional) systems, in particular Poland, Hungary, the Czech Republic, Slovenia and Slovakia. Romania and Bulgaria seem to be borderline cases, although much closer to the second than to the first category (largely thanks to the efforts undertaken in view of their accession to the EU). I will, however, keep referring to the CEE en bloc, because, as regards the main focus of this article, i.e. the constitutionalization of the ECHR system as evidenced, inter alia, by the emergence of ‘pilot judgments’, the latter countries also raised a fundamental challenge to the ECHR system. After all, two main ‘pilot judgments’ originated from Poland.

⁷ On ‘the Turkish problem’ within the Council of Europe system, see Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) at 94–103.

⁸ Stone Sweet and Keller, supra n. 4 at 3.

⁹ Ralph Beddard characterized the Convention ‘as a kind of constitutional document for a united Europe’, see Beddard, Human Rights and Europe, 3rd edn (Cambridge: Cambridge University Press, 1993) at 5–6.

¹⁰ For instance, in Barfod v Denmark A 149 (1987); 13 EHRR 493 at para. 28, the Court claimed that it is ‘empowered to give the final ruling’ on whether a state's interference with a protected right is consistent with the European Convention.

¹¹ As a judge of the European Court has declared: ‘The process of application of the Convention has been, to a considerable extent, transformed into the process of application of the case law of the Strasbourg Court’, see Garlicki, ‘Some Observations on Relations Between the European Court of Human Rights and the Domestic Jurisdictions’, in Iliopoulos-Strangas (ed), Cours suprêmes nationales et cours européennes: concurrence ou collaboration? (Athens: Ant. N. Sakkoulas, 2007) 305 at 306.

¹² Article 46 of the ECHR provides that: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’

¹³ For some telling examples of ECtHR-driven legislative changes in, inter alia, Austria, Belgium, Germany, the Netherlands and Ireland, see Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’, (2005) 13 Duke Journal of Comparative & International Law 95 at 147.

¹⁴ Carter and Trimble, International Law, 2nd edn (Boston: Little Brown, 1995) at 309.

¹⁵ For an in-depth comparison, see Lemmens, ‘The Relation between the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights—Substantive Aspects’, (2001) 1 Maastricht Journal of European and Comparative Law 49.

¹⁶ For a similar comparison and conclusion, see Helfer and Slaughter, ‘Towards a Theory of Effective Supranational Adjudication’, (1997) 107 Yale Law Journal 273 at 297.

¹⁷ See Parliamentary Assembly, Recommendation 1649 (2004): Candidates for the European Court of Human Rights, 30 January 2004, at para. 13. This change would be brought about by Protocol No. 14, which only Russia has not ratified.

¹⁸ The Görgülü case, BVerfGE 111, 307.

¹⁹ Hoffmeister, ‘Germany: Status of European Convention on Human Rights in Domestic Law’, (2006) 4 International Journal of Constitutional Law 722 at 729.

²⁰ For example, in Austria.

²¹ For example, in Spain and France.

²² For example, in Germany and Italy.

²³ Krisch, ‘The Open Architecture of European Human Rights Law’, (2008) 71 Modern Law Review 183 at 196.

²⁴ The Romanian legal scholar Corneliu-Liviu Popescu thus provides the example of a traditional doctrinal position held by the Romanian Constitutional Court which for years refused to endorse a clearly stated position of the ECtHR according to which the capacity of a public prosecutor (‘procurator’) to place a criminal suspect in preventive detention for a period of up to 30 days was inconsistent with Article 6(1) of the Convention. This legal regime was subsequently changed through legislative intervention, not by the Constitutional Court even though the latter had numerous occasions to do so. See Popescu, ‘La Cour constitutionnelle roumaine face à la Cour européenne des Droits de l’Homme—entre soumission et rebellion’, Perspectives Internationales et Européennes, available at http://revel.unice.fr/pie/document.html?id=34 [last accessed 1 July 2009].

²⁵ The margin of appreciation ‘seems to undermine the notion of universality that is a foundation of human rights theory’, see Shelton, supra n. 13 at 134. Steven Greer complains of ‘casuistic, uneven, and largely unpredictable nature’ of the doctrine of margin of appreciation: see Greer, supra n. 7 at 223.

²⁶ Sottiaux and van der Schyff, ‘Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights’, (2008) 31 Hastings International & Comparative Law Review 115 at 135, footnote omitted.

²⁷ Conversation with a judge of ECtHR, Strasbourg, 19 May 2008.

²⁸ Stone Sweet and Keller, supra n. 4 at 12. At the beginning of 2009, nearly 100,000 cases were pending before the ECtHR.

²⁹ This, I should emphasize, is a comparative statement and is not meant to suggest that no important cases, raising central and drastic issues about human rights, had reached the ECtHR prior to the enlargement of the early 1990s. Numerous decisions under Article 15 (derogations from the rights and freedoms in case of public emergency) are obvious exceptions to the generalization made on the main text. Turkey—to name just one pre-1990s Member State—generated a number of cases of dramatic urgency. No sharp line divides pre- and post-1990s; all I am concerned about is a trend.

³⁰ Gaskin v UK A 160 (1989); 12 EHRR 36.

³¹ National Union of Belgian Police v Belgium A 19 (1975); 1 EHRR 578.

³² Marckx v Belgium A 31(1979); 2 EHRR 330.

³³ See, for example, Tyrer v United Kingdom A 26 (1978); 2 EHRR 19 at para. 31.

³⁴ See, for example, Klass v Germany A 28 (1978); 2 EHRR 214 at para. 42.

³⁵ See, for example, Loizidou v Turkey A 310 (1997); 23 EHRR 513 at para. 72.

³⁶ Harmsen, ‘The European Convention of Human Rights after Enlargement’, (2001) 5 International Journal of Human Rights 18 at 29.

³⁷ Quoted by McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’, (2000) 20 Oxford Journal of Legal Studies 499 at 504.

³⁸ Kentridge QC, quoted ibid. at 504, n. 11.

³⁹ Harmsen, supra n. 36 at 23 (footnote omitted).

⁴⁰ Stone Sweet and Keller, supra n. 4 at 8.

⁴¹ Bernhardt, ‘Commentary: The European System’, (1987) 2 Connecticut Journal of International Law 299 at 299–300.

⁴² The European Council, held in Copenhagen in 1993, established that in order to be successful in its pursuit of full membership the applicant State must enjoy, inter alia, ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities ... .’ See European Council in Copenhagen, 21–22 June 1993, Conclusions of the Presidency, SN 180/1/93 REV 1, available at: http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/ec/72921.pdf [last accessed 1 June 2009].

⁴³ Flauss, ‘Les conditions d’admission des pays d’Europe centrale et occidentale au sein du Conseil d’Europe’, (1994) 5 European Journal of International Law 401 at 421.

⁴⁴ See the views of Frédéric Sudre summarized by Harmsen, supra n. 36 at 20–1.

⁴⁵ Declaration of the Council of Europe's First Summit, Vienna, 9 October 1993, available at: https://wcd.coe.int/ViewDoc.jsp?id=621771&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogged=FFAC75 [last accessed 1 June 2009].

⁴⁶ For an evaluation of Russia's human rights record, see Greer, supra n. 7 at 127–31.

⁴⁷ Leuprecht, ‘Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?’, (1998) 8 Transnational Law & Contemporary Problems 313 at 331.

⁴⁸ Harmsen, supra n. 36 at 22.

⁴⁹ Smith, ‘Western Actors and the Promotion of Democracy’, in Zielonka and Pravda (eds), Democratic Consolidation in Eastern Europe - Vol. 2 (Oxford: Oxford University Press, 2001) 31 at 43: ‘[t]he West may have wasted leverage by hastily offering membership in the Council of Europe’.

⁵⁰ See, for example, the landmark case Marckx v Belgium, supra n. 32, where Belgian law related to ‘illegitimate’ children was found discriminatory under Article 14 in conjunction with Article 8 of the ECHR.

⁵¹ Marckx v Belgium, supra n. 32 at paras 26 and 27.

⁵² Garlicki, ‘Broniowski and After: On the Dual Nature of ‘Pilot Judgments’, in Caflisch et al. (eds), Human Rights – Strasbourg Views; Droits de l’homme – Regards de Strasbourg: Liber Amicorum Luzius Wildhaber (Kehl: N. Engel, 2007) 177 at 182–83 (footnotes omitted).

⁵³ Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem, 12 May 2004, available at: https://wcd.coe.int/ViewDoc.jsp?id=743257&Site=CM&BackColorInternet= 9999CC&BackColorIntranet=FFBB55&BackColorLogged=FFAC75 [last accessed 1 June 2009].

⁵⁴ Recommendation Rec(2004)6 of the Committee of Ministers to Member States on the improvement of domestic remedies, 12 May 2004; (2004) 26 HRLJ 116, available at: https://wcd.coe.int/ViewDoc.jsp?id=743317&Site=CM&BackColorInternet=9999CC &BackColorIntranet=FFBB55&BackColorLogged=FFAC75 [last accessed 1 June 2009].

⁵⁵ The first pilot judgment was Broniowski v Poland 2002-X; 40 EHRR 21, where the Court found that broad measures needed to be undertaken so as to provide a general compensation for those claimants who had been repatriated in the course of a re-drawing of Poland's borders during the Second World War. In particular, it related to the claims of those who had been repatriated from the territories beyond the Bug River which constituted the Eastern border of Poland after the end of the War. In its judgment, the Grand Chamber found a violation of Article 1 of Protocol No. 1 and noted that the violation was a result of ‘a malfunctioning of Polish legislation and administrative practice’ affecting a large class of claimants (point 4 of the operative part of the judgment). I have decided to use Hutten-Czapska as my illustration for the pilot-ruling model for two reasons. First, in Broniowski, in contrast to Hutten-Czapska, it is not the defective legislation that is the real source of the problem but the persistent failure by the executive to give effect to the relevant legislation. Second, Hutten-Czapska better illustrates the complex, intricate and iterated synergy between the European Court and the Polish Constitutional Tribunal. Hutten-Czapska is therefore a better ‘exhibit’ in my demonstration of two main points I am making about pilot judgments: that they may address the defects in legislation, and that they are supported by a close collaboration between the European and national courts.

⁵⁶ 42 EHRR 15, Judgment of Chamber, 22 February 2005 (referred to as Hutten-Czapska (1)); Judgment of Grand Chamber, 10 June 2006, supra n. 1 (referred to as Hutten-Czapska (2)); and Judgment (Friendly Settlement), 28 April 2008 (referred to as Hutten-Czapska (3)).

⁵⁷ So long as to cause a dissenting judge to observe caustically: ‘I do not think that it was really necessary to reproduce all those very lengthy quotations from the Constitutional Court's judgments ...’. See Judge Pavlovschi, partly concurring and partly dissenting in Hutten-Czapska (1), supra n. 56.

⁵⁸ Ibid. at para. 187.

⁵⁹ Ibid.

⁶⁰ Ibid. at para. 190.

⁶¹ Ibid. at para. 191.

⁶² Hutten-Czapska (2), supra n. 56 at para. 39.

⁶³ Ibid. at paras 233 and 234.

⁶⁴ Hutten-Czapska (3), supra n. 56 at para. 27.

⁶⁵ Ibid. at paras 31–44.

⁶⁶ Ibid. at para. 34.

⁶⁷ See supra n. 55.

⁶⁸ I am grateful to Mr Adam Bodnar for this observation.

⁶⁹ A formula used by Samantha Besson in her lecture on 19 August 2008 in Sydney, supra n. 5.

⁷⁰ Helfer and Slaughter, supra n. 16 at 289.

⁷¹ Ibid. at 288.

⁷² Ibid. at 277.

⁷³ Maestri v Italy 2004-I; 39 EHRR 38 at para. 47.

⁷⁴ I am grateful to Magda Krzyanowska-Mierzewska for pressing this point on me.

⁷⁵ Broniowski, supra n. 55 at para. 193.

⁷⁶ Apart from more principled reasons given by Judge Zagrebelsky, see below in the main text, the figures of potential similar cases supplied in Broniowski and Hutten-Czapska seem quite fantastic. In Broniowski, the assumption of about 80,000 cases potentially to be brought to the Court, see Broniowski, supra n. 55 at paras 162 and 193, was not borne out by the facts: there were, all in all, between 200 and 300 Broniowski-type cases ultimately brought to the ECtHR—an admittedly large figure but it should be remembered that there are currently roughly 100,000 cases pending before it. Even more tellingly, there was really only a handful of cases of the Hutten-Czapska-type brought to the Court (25 pending as of November 2008) while the ECtHR had used the number of ‘some 100,000 landlords and from 600,000 to 900,000 tenants’ (see Hutten-Czapska (1), supra n. 56 at para. 191) in pressing its docket-control rationale. I am grateful to Magda Krzyanowska-Mierzewska for this information and a related comment.

⁷⁷ Hutten-Czapska (2), supra n. 56, partly dissenting opinion of Judge Zagrebelsky.

⁷⁸ The ‘horizontal’ concern is expressed also in the Concurring Opinion of Judge Ziemele to the 2008 judgment: the structural and systemic problems ‘raise legal and practical difficulties that the Committee of Ministers is much better equipped to monitor than the Court ...’, Hutten-Czapska (3), supra n. 56.

⁷⁹ Hutten-Czapska (3), ibid., separate opinion of Judge Zagrebelsky joined by Judge Jaeger.

⁸⁰ See Hutten-Czapska (2), supra n. 56 at partly concurring, partly dissenting opinion of Judge Zupani. The dissenting part of this opinion (Part III) deals with the interpretation of the terms ‘peaceful enjoyment of [one's] possessions’ in Article 1 of Protocol No. 1, and has no relevance to our discussion here.

⁸¹ Ibid. at Part I of his opinion.

⁸² Ibid. at Part I.

⁸³ Ibid. at Part I.

⁸⁴ Ibid. at Part II.

⁸⁵ Ibid. at Part II, both emphases added.

⁸⁶ Ibid. at Part II.

⁸⁷ See, for example, Hutten-Czapska (2), supra n. 56 at paras 137–140, 142.

⁸⁸ Hutten-Czapska (2), supra n. 56 at Part 3, operative part of the judgment.

⁸⁹ Ibid. at operative Part 3.

⁹⁰ Ibid. at Judge Zupani's opinion, Part I.

⁹¹ Ibid. at operative Part 4.

⁹² Ibid.

⁹³ Ibid. at Judge Zupani's opinion, Part II.

⁹⁴ Ibid. (italics in original).

⁹⁵ Hutten-Czapska (2), supra n. 56 at operative Part 4.

⁹⁶ Garlicki, supra n. 52 at 185.

⁹⁷ Keller and Stone Sweet, ‘Assessing the Impact of the ECHR on National Legal Systems’, in Keller and Stone Sweet, supra n. 3 at 703.

⁹⁸ Sejdovic v Italy 42 EHRR 17, at operative Part 2A.

⁹⁹ Sejdovic v Italy 2006-II (GC) at paras 109 and 120; and Scordino v Italy (No.1) 2006-V; 45 EHRR 7(GC) at paras 230–231 and 236. Similar language was used also in Lukenda v Slovenia 2005-X; 47 EHRR 32; Tekin Yildiz v Turkey, Application No. 22913/04, 10 November 2005; and Xenides-Arestis v Turkey Application No. 46347/99, 22 December 2006.

¹⁰⁰ Garlicki, supra n. 52 at 190.

¹⁰¹ The concept is used by Garlicki, ibid. at 191.

¹⁰² Ibid. at 190.

¹⁰³ Ibid. at 190.

¹⁰⁴ Ibid. at 191 (emphasis added).

¹⁰⁵ Burdov v Russia 2002-III; 38 EHRR 29 (violation of Article 6(1) and Article 1 of Protocol No. 1 for failure to enforce court decisions on compensation for health loss). Since the Court's decision of 7 May 2002 in Burdov, more than 100 judgments were delivered over six years finding repetitive violations of the Convention on account of non-enforcement or late enforcement of domestic judicial decisions.

¹⁰⁶ See Willis v UK 2002-IV; 35 EHRR 21; Hobbs, Richard, Walsh and Green v UK 44 EHRR 54; and Runkee and White v UK Application Nos 42949/98 and 53134/99, 25 July 2007. It should be added that the domestic law has been amended by now.

¹⁰⁷ I am indebted to Magda Krzyanowska-Mierzewska for this observation.

¹⁰⁸ See the Resolution and Recommendation, supra n. 53 and n. 54 respectively.

¹⁰⁹ Broniowski, supra n. 55 at para. 149.

¹¹⁰ Brannigan and McBride v UK A 258-B (1993); 17 EHRR 539 per Judge Martens, concurring opinion at para. 3.

¹¹¹ See, for example, Christian Democratic People's Party v Moldova 2006-II; 45 EHRR 13. This is not to suggest that before there had not been occasional Court scrutiny of this subject matter: see, for example, United Communist Party of Turkey v Turkey 1998-I; 26 EHRR 121.

¹¹² Melnychenko v Ukraine 2004-X; 42 EHRR 39.

¹¹³ Madsen, ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’, (2007) 32 Law and Social Enquiry 137 at 144.

¹¹⁴ Harmsen, supra n. 36 at 23.

¹¹⁵ Krisch, supra n. 23 at 215.

¹¹⁶ Madsen, supra n. 113 at 147–8 (footnote omitted).

¹¹⁷ Under Article 33 of the ECHR, each Contracting State can complain about a violation of the Convention by another Contracting State. Until October 2008, only 22 applications by States were lodged in this form. But even this low number understates the usage of this procedure because there have been multiple applications triggered by one and the same alleged violation. In fact, only nine situations in different Contracting States have generated an interstate complaint under Article 24.

¹¹⁸ Professor S.A. de Smith, quoted by Seymour, ‘The Extension of the European Convention on Human Rights to Central and Eastern Europe: Prospects and Risks’, (1993) 8 Connecticut Journal of International Law 243 at 251.

¹¹⁹ Casado Coca v Spain A 285 (1994); 18 EHRR 1.

¹²⁰ Luciani, ‘Italie’, in Iliopoulos-Strangas (ed), supra n. 11 at 217 (my translation).

¹²¹ Moreno Gómez v Spain 2004-X; 41 EHRR 40.

¹²² Krisch, supra n. 23 at 190.

¹²³ López Ostra v Spain Series A303-C (1994); (1995) 20 EHRR 277.

¹²⁴ Rubio Llorente, ‘Espagne’, in Iliopoulos-Strangas (ed), supra n. 11 at 163–4.

¹²⁵ Ibid. at 165.

¹²⁶ Von Hannover v Germany 2004-VI; 40 EHRR 1.

¹²⁷ Ibid. at para. 64

¹²⁸ Ibid. at para. 72.

¹²⁹ See Smith, ‘Pays scandinaves’, in Iliopoulos-Strangas (ed), supra n. 11 at 273–4.

¹³⁰ Sadurski, ‘Accession's Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe’, (2004) 10 European Law Journal 371.

¹³¹ See Sadurski, ‘The Role of the EU Charter of Rights in the Process of Enlargement’, in Bermann and Pistor (eds), Law and Governance in an Enlarged European Union (Oxford: Hart, 2004) 61 at 71–86.

¹³² See Sadurski, ‘Charter and Enlargement’, (2002) 8 European Law Journal 340.

¹³³ As the authors of an article on the reasons for the popularity of the Convention in Poland observe, what many of the Strasbourg applicants want is ‘for the Court to ‘intervene’ actively whenever the national authorities fail. Their model of the Court is that of a kind of Robin Hood justice which would step into domestic cases and put things in order ...’, Dembour and Krzyzanowska-Mierzewska, ‘Ten Years On: The Popularity of the Convention in Poland’, (2000) 4 European Human Rights Law Review 400 at 413.

¹³⁴ Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’, (2000) 54 International Organization 217 at 220.

¹³⁵ See text accompanying supra n. 85.

¹³⁶ This governing majority lost the parliamentary election of late 2007, but President Lech Kaczynski—whose term of office lasts until 2010—has been also part of this anti-Constitutional Tribunal tendency.

¹³⁷ See more on these decisions, Sadurski, ‘ "Solange, Chapter 3": Constitutional Courts in Central Europe – Democracy – European Union’, (2008) 14 European Law Journal 1 at 32–33.

¹³⁸ For a detailed description, see Kühn and Kysela, ‘Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic’, (2006) 2 European Constitutional Law Review 183 at 196–205.

¹³⁹ Decision No. 375/2005 of 6 July 2005.

¹⁴⁰ Decision No. 610/2005 of 14 November 205.

¹⁴¹ Mr Teodor Melescanu, vice-president of PNL (National Liberal Party).

¹⁴² By ‘Solange story’ I understand a tradition of resistance, by many European constitutional courts, to the supremacy of EU law over national constitutional systems on the basis that national constitutional courts are the ultimate guardians of democracy and the protection of constitutional rights. See Sadurski, supra n. 137 at 2–3.

¹⁴³ On 27 April 2006, the Polish Constitutional Tribunal (Decision P1/05) found a provision of the Code of Criminal Procedure implementing the European Arrest Warrant (EAW) inconsistent with the constitutional prohibition of extradition of Polish citizens; at the same time, the Tribunal suspended the effects of its decision for 18 months (the maximum it was allowed to) in order to give the legislature enough time to sort out the problem. The politicians got the message, and as a result of a surprisingly smooth cooperation between the President, the governing coalition and the parliamentary opposition, the Constitution was duly amended on 8 September 2006, and by adding the appropriate exception to the general ban on extradition, the clash between the EAW and the Constitution was removed.

¹⁴⁴ The Czech Constitutional Court annulled, in its decision PL US 50/04 of 8 March 2006, governmental regulations on production quotas for sugar producers on the basis that the government has exercised a competence, which had been already transferred to the European Community; for discussion, see Sadurski, supra n. 137 at 6–9.

¹⁴⁵ Favoreu, La politique saisie par le droit (Paris: Economica, 1998) at 30.

¹⁴⁶ As a random example, consider the case of the Romanian Constitutional Court. Research of the Court's case-law on its Internet portal shows that in the period 2004–2007, there have been, for each of these years, 108, 149, 202 and 224 cases containing references to the Convention. I am grateful for this research done by Dr Alina Stanciulescu.

¹⁴⁷ Uitz, Taking Courts to Court: The Story of Compliance with Strasbourg Jurisprudence in Germany. (Unpublished manuscript 2008, on file with the author) at 2.

¹⁴⁸ Interview with a judge of the Constitutional Tribunal, Warsaw, 1 June 2008.

¹⁴⁹ Decision 146/2000.

¹⁵⁰ See Krzyanowska-Mierzewska, ‘The Reception Process In Poland and Slovakia’, in Keller and Stone Sweet (eds), supra n. 3 at 592.

¹⁵¹ Vasilescu v Romania 1998-III; 28 EHRR 241 (in this case, the ECtHR found a violation of Article 6 because it decided that giving certain judicial powers (regarding civil cases for restitution) to a public prosecutor amounted to a denial of ‘access to tribunal’). See also Pantea v Romania 2003-VI; 40 EHRR 26 (here the Court found that the public prosecutor who orders pre-trial detention is not an ‘officer’ for the purposes of Article 5(3) of the Convention).

¹⁵² For example, Decision 108/1998 of 14 July 1998.

¹⁵³ Popescu, supra n. 24 at Part 6.

¹⁵⁴ K 21/05 of 18 January 2006.

¹⁵⁵ Ibid. at Part 4 of the reasoning of the Tribunal.

¹⁵⁶ Bczkowski v Poland 48 EHRR 19.

¹⁵⁷ Ibid. at para. 70.

¹⁵⁸ Ibid. at paras 39–42 and 71.

¹⁵⁹ Ibid. at para. 100.

¹⁶⁰ Ibid. at para. 27.

¹⁶¹ Ibid. at para. 100.

¹⁶² See, for example, Seymour, supra n. 118 at 259–62.

¹⁶³ See, for example, Harmsen, supra n. 36 at 32 and 36; and Greer, ‘What's Wrong with the European Convention of Human Rights?’, (2008) 30 Human Rights Quarterly 680 at 686.

¹⁶⁴ Brown v Board of Education 347 U.S. 483 (1954).

¹⁶⁵ Roe v Wade 410 U.S. 113 (1973).

¹⁶⁶ Lemon v Kurtzman 403 U.S. 602 (1971).

¹⁶⁷ The 1975 decision of German Federal Constitutional Court, discussed by Stone Sweet, Governing with Judges (Oxford: Oxford University Press, 2000) at 109–10.

¹⁶⁸ The 1973 decision of GFCC discussed by Stone Sweet, ibid. at 86.

¹⁶⁹ Such a claim has been made, famously, by the Court itself, see Loizidou v Turkey A 310 (1995); 20 EHRR 99 at para. 75, where the Court referred to ‘the Convention as a constitutional instrument of European public order (ordre public)’. See also Greer, supra n. 7 at 190 (the European Convention characterized as a constitution).

¹⁷⁰ See Moderne, ‘Rapport de synthèse’, in Iliopoulos-Strangas, supra n. 11 at 360.

¹⁷¹ Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’, in Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press) at 153–4.

¹⁷² This statement needs to be qualified. The Convention is entrenched in the sense that any changes require the unanimity of all Contracting States but, from the point of view of a citizen of a Contracting State, it is only as entrenched as the domestic requirements for a denunciation of the Convention are: each State may ‘denounce’ the Convention after six months notice. But then, for those CoE Members who are also EU Members, the ECHR is also indirectly entrenched via EU law.

¹⁷³ ETS No. 1, Statute of the Council of Europe, 5 May 1949.

¹⁷⁴ Recommendation Rec(2004)6 of the Committee of Ministers, supra n. 54.

¹⁷⁵ The New Zealand Bill of Rights Act of 1990 imposes a duty on all courts to interpret all the other statutes in accordance with the Bill (which, formally, is a statute); for a discussion, see Gardbaum, ‘The New Commonwealth Model of Constitutionalism’, (2001) 49 American Journal of Comparative Law 707 at 727–32.

¹⁷⁶ Section 33 of the Canadian Charter of Rights and Freedoms (so called ‘notwithstanding’ clause).

¹⁷⁷ On the basis of the Human Rights Act of 1998 (UK) certain specified higher courts may make a declaration of incompatibility of the legislation with the ECHR; in such a case, a fast-track procedure may be used to amend such legislation.

¹⁷⁸ Keller and Stone Sweet, supra n. 97 at 703.

¹⁷⁹ Seymour, supra n. 118 at 254.

¹⁸⁰ For more on the legitimacy dilemmas and conundrums of constitutional courts in CEE, see Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht: Springer, 2005) at 27–63.

¹⁸¹ Interview with a judge of Constitutional Tribunal of Poland, Warsaw, 1 June 2008.

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