‘Principled Resistance’ to ECtHR Judgments: An Appraisal

Abstract

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

I. Introduction

The preceding chapters have shown numerous examples of national courts deviating from ECtHR jurisprudence. Not each and every single case of disagreement, however, qualifies for ‘principled resistance’. In the opening chapter, it was said that one of the principal tasks of the present volume is to find out ‘which cases actually deserve the classification of “principled resistance”, as opposed to mere “disagreement” cases’.¹ It is submitted that ‘disagreement’ cases are not as detrimental to the Convention system as a whole (and therefore are easier to accept from the Convention point of view), compared to ‘principled resistance’ cases.

It would seem that at least some members of the ECtHR are concerned about cases of ‘principled resistance’. In this sense, a most recent partly concurring, partly dissenting opinion by Judge Pinto de Albuquerque speaks volumes:

Yesterday’s political fault lines are disappearing for the benefit of hard-line parties and populist movements that have risen at either end of the political spectrum. One major commonality among these parties and movements is their unprecedented barrage of bellicose verbiage against the Court, based on flawed, inaccurate and easily debunked misinformation. […] In recent years the resentment against the Court has reached a new, alarming pitch, stoking sectarian rage against the Convention system itself. […]

The excruciating problem for the Convention system is that this politically motivated narrative, which is aimed at the disruption of the Convention system as it was built and has evolved over the last sixty years, has contaminated the discourse, if not the hearts, of the highest judicial representatives in some countries. […].²

II. The Concept of ‘Principled Resistance’

At this point, it may be advisable to recall the definition that was given to the category of ‘principled resistance’ in Chap. 1:

(1) It is a legal conflict, normally resulting from a clash between the national constitution and the Convention. (2) The conflict leads to a permanent blockade, in the sense that an ECtHR judgment cannot and will not be implemented. This may result either (a) from a deep disagreement between a national actor and the Court on the protection of human rights or (b) from a conflict between the ECtHR judgment and ‘national identity’ (or indeed both of them).³

For analytical purposes, it is important to note that subcategories (a) and (b) have different targets. Subcategory (a) questions solely the interpretation given by the ECtHR (‘the Court “got it all wrong”’⁴) whereas subcategory (b) confronts the outcome of the Court’s interpretation exercise by an obstacle coming from the national level. Thus, subcategory (a) is concentrated at the Convention level while subcategory (b) is concerned with an opposition between the Convention level and the domestic level (the ‘national identity’ scenario).

To give an example, the Russian Constitutional Court in its seminal 2015 judgment on the status of the Convention indicated that there may be two reasons for opposing the outcome of a Strasbourg case. The first one is solely centred at Convention level: Where the ECtHR exceeds the acceptable limits of interpretation as enshrined in the VCLT, the respondent State has a right, according to the Russian Constitutional Court, to object. In the words of the judgment:

[If the] European Court of Human Rights, interpreting a provision of the Convention for the Protection of Human Rights and Fundamental Freedoms in the course of the consideration of a case, gives to a notion used in the Convention a meaning other than the ordinary one or carries out interpretation contrary to the object and purpose of the Convention, the state, in respect of which the judgment has been passed on this case, has the right to refuse to execute it as it goes beyond the obligations, voluntarily taken by this state upon itself when ratifying the Convention.⁵

This ‘right to object’ concerns only the interpretation as given at the Convention level proper (the ‘external rationale’ in the categorisation by Martin Kuijer⁶). The second situation (Kuijer’s ‘internal rationale’) is characterised by the Constitutional Court to the effect that

[…] Russia may, as an exception, deviate from fulfilment of obligations imposed on it, when such deviation is the only possible way to avoid violation of fundamental principles and norms of the Constitution of the Russian Federation.⁷

Here, the outcome of a Strasbourg case is at variance with the national/constitutional identity, so the obstacle results from the national level. The Russian Constitutional Court’s 2016 judgment⁸ in the Anchugov and Gladkov case demonstrates how a combination of both subcategories might possibly end up in a situation of principled resistance: On the one hand, the Constitutional Court criticised the ECtHR for having gone too far in its evolutive interpretation of Article 3 of Protocol No 1 (subcategory (a)), while on the other hand, this interpretative result was confronted with a core provision of the Russian Constitution that can basically be amended only through the passing of a new constitution (subcategory (b)).

Both elements are not only present in the jurisprudence of the Russian Constitutional Court but can be traced back to various cases reported in this volume. Thus, the German Federal Constitutional Court argued that in ‘multipolar’ situations, the private party who was not involved in the Strasbourg proceedings might be negatively affected by an ECtHR judgment.⁹ It thereby made an argument that aims at the purported inadequacy of the balancing of opposing rights and interests at Convention level, as is typical for subcategory (a). Quite a similar argument could be found in Italy where the systemic difference between the ECtHR deciding individual cases and the Constitutional Court addressing questions of constitutionality in abstracto was adduced as an argument to allow the latter a different balancing exercise, compared to the Strasbourg decision.¹⁰ Finally, the arguments adduced in the British prisoners’ voting rights case equally targeted the Convention level as is typical for subcategory (a). Unlike the examples from Germany and Italy, the arguments were not concerned with the balancing of competing private interests but with the adequacy of evolutive interpretation as such (in this aspect coinciding with the position of the Russian Constitutional Court). Thus, it was argued that the Strasbourg Court had ‘forgotten that its job is to apply the principles of the Convention as originally intended by those who signed it’ and that it had stretched Article 3 of Protocol No 1 ‘beyond its proper and intended meaning’ by turning it from a mere State obligation into a subjective right.¹¹

As for subcategory (b), ‘constitutional redlines’ (to use a phrase stemming from Ed Bates’ contribution)¹² could be identified in a number of countries. Thus, the German Federal Constitutional Court insisted on the ‘last word’ of the German Constitution.¹³ As for the UK, Pinnock criterion (iii) was identified as having the effect that even a constant line of ECtHR case law may not be followed by the national judges if it is found to be ‘inconsistent with some fundamental substantive or procedural aspect of our law’.¹⁴ The Austrian Constitutional Court referred to ‘basic constitutional principles’ (‘Baugesetze’ or ‘Grundprinzipien’) which might prevent it from following an ECtHR judgment.¹⁵ The Italian Constitutional Court has been found to go even further in that the Convention (including the case law of the ECtHR) has to comply with the full range of the Italian Constitution and not only with the counter-limits doctrine (relevant in the case of EU law).¹⁶

After all, national (constitutional) courts have the dogmatic concepts at their disposal to block execution of an ECtHR judgment. This result hardly comes as a surprise given the fact that the supremacy of the Convention is restricted to the level of public international law and does not intrude into the national realm.¹⁷ Still, for distinguishing between cases of ‘principled resistance’ and those of mere disagreement, regard must be had to the difference between res judicata and res interpretata (III. and IV.). From that, one might draw conclusions as to what makes a ‘principled resistance’ case (V.).

III. The Res Judicata Effect of ECtHR Judgments

Under Article 46 § 1 ECHR, States Parties to the Convention ‘undertake to abide by the final judgment of the Court in any case to which they are parties’. The legal consequences flowing therefrom are well-established in the Court’s case law. The locus classicus is Scozzari and Giunta where the Court held that

[…] a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects.¹⁸

These obligations are addressed to the respondent State as a subject of international law, i.e. to the State in its entirety. Depending on the division of competences under national law, it might be up to the legislative, the executive or even to the judicial branch of government to react. It has to be underlined, however, that under the original design of the Convention, instances where the national judiciary was called upon to execute a particular ECtHR judgment in the individual case were extremely rare. Due to the requirement to exhaust domestic remedies (today’s Article 35 § 1 ECHR), cases were usually heard by the Strasbourg Court only after they had acquired the status of res judicata under national law. According to well-established case law, the ECtHR has no competence to order a reopening of proceedings following a finding of a violation.¹⁹ Thus, under the original design of the Convention, the national judiciary was normally not called upon to react to a Convention breach after the individual victim had won the case in Strasbourg. National level and Convention level were kept basically apart.

Today, this situation has changed significantly. Most States Parties to the Convention allow for a reopening at least in criminal cases, while some others also do in civil cases.²⁰ This development was instigated on the one hand by Recommendation No R(2000)2²¹ and on the other hand by the jurisprudence of some constitutional courts. Thus, the Italian Constitutional Court demanded a reopening clause in criminal matters (while concluding later that there was no obligation to extend this jurisprudence to administrative matters).²² In Russia, the Constitutional Court demanded that the reopening provided for in cases before commercial courts be extended to courts of general jurisdiction.²³ Other courts were more restrictive: Thus, the German Federal Constitutional Court still adheres to the conservative view that there is no duty under constitutional law to introduce a reopening clause for cases following a conviction in Strasbourg.²⁴ In Austria, existing legislation restricts the reopening of cases to criminal matters and the Supreme Administrative Court concluded that there is no necessity to treat administrative matters on equal footing.²⁵

For the topic under consideration, this has far-reaching consequences. Paradoxically, the Strasbourg-friendly gesture of the national legislator and/or judiciary to allow for a reopening might have the reverse effect of enhancing the potential for principled resistance. In the UK, e.g., under section 2(1) of the Human Rights Act national judges are required to take ECtHR judgments ‘into account’, which clearly gives them an option to deviate from a Strasbourg finding.²⁶ Likewise, under German constitutional law, national judges are required to take ‘into consideration’ ECtHR case law which equally gives them the power to contradict a Strasbourg judgment.²⁷ Where this occurs in the post-reopening phase, it might have the effect that execution of the ECtHR judgment be entirely blocked, which then would be in breach of the obligation flowing from Article 46 § 1 ECHR to properly implement an ECtHR judgment. In this sense, the Venice Commission was right to hold that the power of the Russian Constitutional Court to declare an ECtHR judgment ‘non-executable’ is at variance with the Russian Federation’s obligation under Article 46 § 1 ECHR.²⁸

Blocking will be particularly serious in the Assanidze type of cases.²⁹ Given the fact that in these cases, the measures to be taken in favour of the individual applicant are ordered by the ECtHR, the confrontation between the national judges and Strasbourg will be particularly serious. In this sense, Mammadov,³⁰ although not showing the general characteristics of ‘principled resistance’,³¹ is a case in point.

Under Article 46 § 1 ECHR, non-implementation is not an option. Previous chapters have furnished positive examples of national courts adhering to a Strasbourg judgment in order to honour the respondent State’s international obligation, albeit sometimes only with a strong grumbling. In this sense, the Swiss Tribunal fédéral granted revision following the Strasbourg verdict in Verein gegen Tierfabriken Schweiz (VgT) No 2,³² notwithstanding the fact that the Swiss judges were not persuaded by the reasoning of the Strasbourg Court.³³ The UK Supreme Court was ready to accept that the existing blanket ban on voting rights for serving prisoners was in breach of Article 3 of Protocol No 1, despite its own previous findings to the contrary and despite criticism originating from within the Court. In this vein, Lord Sumption held that

[a] wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy. But it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation, and different from that which will consequently apply in every other state party to the Convention.³⁴

As for the reactions coming from the other branches of government in the prisoners voting case, it should be recalled that the UK Government in November 2012 presented a draft bill³⁵ containing three options, one of them being to leave national legislation as it stood at the time. It was clear that this option was not in keeping with the UK’s international obligations, as was promptly underlined by the Committee of Ministers.³⁶ Against this background, the proposal that was finally accepted by the Committee of Ministers—to leave the legislation intact but to make administrative amendments, with the effect that a certain group of prisoners (especially those released on temporary licence) are entitled to vote³⁷—is to be welcomed as it shows that there is at least some reaction to the ECtHR judgment. Certainly, it may be criticised that this is no more than a ‘token change in the law’³⁸ as it leaves the indiscriminate character of disenfranchisement under existing legislation, which arguably was at the core of the Strasbourg verdict, unaltered.³⁹ It should be recalled that according to Scozzari and Giunta, States do not have an unfettered freedom of choice to react to ECtHR judgments but are obliged to take ‘such means [that] are compatible with the conclusions set out in the Court’s judgment’.⁴⁰ But from the perspective of principled resistance, it must be underlined that the current proposal has the benefit of demonstrating that the Convention system is working, thereby diminishing the risk of cherry-picking by other States Parties. With the Committee of Ministers having exercised its function under Article 46 § 2 ECHR, it will be for the ECtHR to evaluate in a new set of proceedings whether or not the UK thereby lived up to her Convention obligations. This task will be no less delicate because the Court will have to weigh the risk of de novo instigating considerable UK resistance against the integrity of its own jurisprudential principles.⁴¹

These considerations allow, then, for making an assessment of the Russian situation. As for the Russian Constitutional Court’s 2016 decision in Anchugov and Gladkov, it has to be noted that in the operative part, it is held that execution of the ECtHR judgment is excluded only as far as Article 32(3) of the Russian Constitution is concerned but that execution is possible as far as amendments of ordinary legislation or judicial practice are at stake.⁴² Like in the case of the UK, it may be argued that this solution does not actually resolve the problem as it upholds the indiscriminate and automatic character of the ban on the right to vote for serving prisoners in Russia (as enshrined in the Russian Constitution).⁴³ On the other hand, it allows the Russian authorities to show at least some reaction to the ECtHR judgment, thereby demonstrating that the Convention system does actually work. Another question seems to be whether or not the reaction by the Russian Constitutional Court can be qualified, against the background of its 2015 decision on the status of the Convention, as a bona fide engagement in Russia’s international obligations. There are good reasons to believe that the 2015 decision from the very beginning aimed at inhibiting implementation of both Anchugov and Gladkov and of the Yukos just satisfaction judgment.⁴⁴ In particular, the Russian authorities informed the Department for the Execution of the Judgments in June 2015 that they were unable to provide any further information related to the execution of the said judgments because the Russian Constitutional Court’s decision was going to be ‘determinative for the procedure and possibility of execution of the above judgments’.⁴⁵ Given the otherwise tainted atmosphere between the two courts following Konstantin Markin,⁴⁶ the signals of the Russian Constitutional Court show a high degree of ambivalence: On the one hand, the Court clearly flexed its muscles vis-à-vis Strasbourg but on the other hand apparently wanted to avoid becoming too confrontational.

As regards Yukos, the assessment is even more delicate, for various reasons: First, it is difficult to see how the Russian Constitutional Court satisfied its own criteria established in the 2015 decision, namely that a ‘violation of fundamental principles and norms of the Constitution’ was at stake.⁴⁷ The Constitutional Court’s references in Yukos to the ‘constitutional principles of equality and justice in tax relation’ remain too vague in order to indicate which fundamental principles would actually be impaired.⁴⁸ On the other hand, the amount of just satisfaction that had been ordered by the ECtHR was so immense⁴⁹ that it is difficult to imagine any European State paying it without any further problems. Efforts of the Russian Government to have the just satisfaction judgment corrected by the Grand Chamber finally proved unsuccessful, the referral request being rejected.⁵⁰ What is worrisome is the fact that in this case, the options to come to a face-saving solution are to be regarded as minimal. Although the Russian Constitutional Court ‘does not exclude the possibility to manifest good will of the Russian Federation’ in search for a ‘lawful compromise’, payment of just satisfaction may be effected only from newly revealed property of the liquidated Yukos company (such as sums concealed on foreign accounts) but not from the Russian State budget.⁵¹ The Russian Government informed the Committee of Ministers that ‘as of 1 October 2018 there is no information on the revealed assets (including foreign ones) of the applicant company, therefore the proceedings for compensation payment to the shareholders cannot be initiated yet’.⁵² What makes the solution much more difficult is the fact that in just satisfaction issues, there are only two options: payment or non-payment.

With regard to Switzerland, it should be noted that the blocking potential in the post-reopening phase (and thereby the potential for ‘principled resistance’) would have risen significantly if the self-determination initiative had been successful.⁵³ In particular in combination with direct democracy, there would have been a feasible scenario where in reaction to an adverse ECtHR judgment, the Swiss Constitution would have been amended in order to block implementation. It is consoling to see the Swiss people react prudently, thereby withstanding populist movements.

The above findings may be contrasted with what Andreas von Staden concluded, albeit from a different theoretical setting:

The sovereignty and material costs of complying with adverse judgments can generally be expected to increase with the scope and complexity of the remedial measures required, being lowest in the case of simple payments of just satisfaction, higher when additional individual measures have to be adopted, and highest when general measures such as changes in legislation, are needed as well.⁵⁴

As a general rule, this holds true. Yukos has shown, however, that there may be cases where the payment of just satisfaction meets a practically unsurmountable legal obstacle. On the other hand, it might be ‘easier’ to implement general measures because it is just the complexity of the issue that allows for face-saving compromises, in contrast with the payment of just satisfaction.

In sum, ‘minimalist compliance’⁵⁵ should be seen as a feasible option for States to react to ECtHR judgments. Non-implementation is not an option. Token compromises as established in the British prisoners voting case are no doubt problematic but less damaging for the system as a whole than complete inactivity. Face-saving solutions are not a unique feature of the Convention but are known from other contexts as well: Thus, the CJEU’s Taricco II judgment was characterised by Stefanie Schmahl as a ‘compromise formula’ enabling the Luxembourg Court to uphold the principle of EU law supremacy without restrictions while at the same time demonstrating openness for the concerns expressed by the Italian Constitutional Court. The CJEU thereby ‘deftly evade[d]’ a head-on collision with its national counterpart.⁵⁶ This shows the uniqueness of the Russian Constitutional Court’s reactions to both Anchugov and Gladkov and to the Yukos just satisfaction judgment, in that the Russian Court is so far the only court having clearly enunciated the incompatibility of ECtHR standards with the national constitution.

IV. The Res Interpretata Effect of ECtHR Judgments

While the res judicata effect of ECtHR judgments rests on established principles, it is far from certain whether and to what extent ECtHR judgments enjoy the effect of res interpretata. The Convention itself makes no explicit reference to this concept.⁵⁷ Still, the Court most recently endorsed the concept of ‘judicial authority’, which is tantamount to res interpretata, in its reasoning. This made Judge Pinto de Albuquerque conclude that the Court ‘has converted the scholarly concept of the “interpretative authority” (res interpretata) of its judgments into a legally binding principle of Convention interpretation and application’.⁵⁸ The implications of this judgment will be addressed below.⁵⁹

1. Concept and Meaning of Res Interpretata

The aim of the res interpretata concept is to extend the binding nature of ECtHR pronouncements beyond the limits of Article 46 § 1 ECHR. Under the said provision, Strasbourg judgments are binding only inter partes.⁶⁰ By means of res judicata, the respondent State is prevented from upholding its position that in the individual case, the Convention has not been breached.⁶¹ It does not mean that in a different albeit analogous case, the State concerned will be legally prevented from doing so. Nor does the judgment under Article 46 § 1 ECHR produce binding effects on States other than the respondent State—it does not produce effects erga omnes partes.

There are clear indications, however, that the Court itself regards its mission not restricted to deciding individual cases. Thus, already in 1978 it declared that

[t]he Court’s judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties.⁶²

It later added that

[a]lthough the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.⁶³

As of today, this formula is established case law.⁶⁴ It should be noted that unlike the res judicata principle, the standards established in the Court’s case law are of relevance for all Contracting Parties, i.e. they have an effect erga omnes.

The present volume produced a number of examples where national courts acknowledged the erga omnes effect of ECtHR jurisprudence.⁶⁵ Thus, the German Federal Constitutional Court has been found to take

account of decisions of the European Court of Human Rights even if they do not relate to the same subject matter. This is based on the fact that the case-law of the European Court of Human Rights has at all events a de facto function of orientation and guidance for the interpretation of the European Convention on Human Rights, even beyond the specific individual case in a decision.⁶⁶

The Italian Constitutional Court accepted that judgments not related directly to Italy ‘contain general assertions which the European Court considers to apply beyond the specific case and which this Court regards as binding also under Italian law’.⁶⁷ Similarly, under the 2013 Plenary Resolution of the Russian Supreme Court, international judgments against other States ‘should be taken into account by Russian judges if circumstances of the case at hand were similar to those decided by the ECtHR’.⁶⁸ Those examples, however, address the res interpretata effect merely from a national constitutional law perspective.⁶⁹ They cannot be determinative for establishing the contours of erga omnes effect of ECtHR judgments from the perspective of international law.

From a dogmatic point of view, there are two avenues for defending res interpretata effect of ECtHR judgments.⁷⁰ The first one takes Article 1 ECHR as a starting point. Under this provision, the High Contracting Parties ‘shall secure to everyone within their jurisdiction the rights and freedoms’ enshrined in the Convention. It may be argued that this obligation does not only refer to the Convention as such but also encompasses the Convention standards as established in the ECtHR’s case law. In this sense, Samantha Besson holds that ‘[o]nce released by the Court, [the] interpretation [of Convention guarantees] becomes an integral part of the authority of the ECHR right itself’.⁷¹ Similarly, Jörg Polakiewicz opines that the Court’s interpretation does not have binding authority as such but takes part in the binding character of the norm interpreted.⁷² The second dogmatic avenue for establishing a res interpretata effect is recourse to Articles 19 and 32 ECHR respectively. Under the former, the ECtHR is vested with the task to ‘ensure the observance of the engagements undertaken […] in the Convention and the Protocols thereto’. Under the latter, the ‘jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto’. It may be argued that this inevitably necessitates a concretisation of Convention standards, which consequently gives the Court authority to establish such standards.⁷³

2. Does the Res Interpretata Effect Produce Legal Obligations?

Whatever avenue is taken, the problem that needs to be tackled remains whether or not the effect referred to as res interpretata leads to an actual legal obligation for the national judiciaries to follow such a Convention standard. In the alternative, it may be argued that Convention standards established by ECtHR case law have a certain de facto effect without, however, leading to a compulsory undertaking to abide by the course taken in the Strasbourg jurisprudence. In other words: If a national court decides to disagree, does the disagreement in and of itself constitute a breach of the Convention? Or is it just unwise for the national judges to do so because the predictable outcome is that the case will be brought before the ECtHR which will then apply its established standards?

Views are divided on this question. A first group of authors wishes to attribute to the legal standards established by ECtHR case law a truly binding force⁷⁴ whereas a second group is more restrictive and adheres to the concept of de facto effect.⁷⁵ Some authors expressed the wish for a binding erga omnes effect of ECtHR judgments while acknowledging at the same time that this would require a change in the law.⁷⁶ A third group of authors admits that the ECtHR’s jurisprudential standards are not binding as such but holds the view that Convention States are under a procedural obligation to take them into account.⁷⁷

If one accepts the first proposition, one must be clear about the consequences. Under this scenario, the proposed binding effect of res interpretata will be aligned with the res judicata effect under Article 46 § 1 ECHR: there is no room for disagreement. Argentoratum locutum, iudicium finitum.⁷⁸ A national judge may avoid following a line of ECtHR jurisprudence by, e.g., distinguishing the facts of the case under consideration from the cases examined so far in Strasbourg. But the national judge will be prevented from presenting a different reading, as far as the interpretation of the Convention is concerned. It is submitted that this would be an overly rigid approach. Especially at a moment when the concept of ‘shared responsibility’ has gained considerable significance at the Council of Europe level,⁷⁹ interpreting the Convention should not be regarded as the sole prerogative of the Strasbourg Court. National courts—constitutional courts in particular—have a lot to contribute to interpreting the Convention from their national experience.⁸⁰ In this sense, former Deputy Registrar Michael O’Boyle developed the notion of a ‘two-way dialogue through judgments’.⁸¹ Similarly, former ECtHR President Nicolas Bratza expressed his believe that ‘it is right and healthy that national courts should continue to feel free to criticise Strasbourg judgments where those judgments have applied principles which are unclear or inconsistent or where they have misunderstood national law or practices’.⁸² And Oddný Mjöll Arnardóttir rightly pointed⁸³ to the fact that this understanding of judicial dialogue fits well into the Court’s emerging process-based review as recently practised under the margin of appreciation doctrine.⁸⁴

All this is not to say that the Strasbourg Court should be stripped of its authority under Article 19 ECHR to be the final arbiter in Convention matters. But should the national judges be denied leeway to deviate from Strasbourg jurisprudence, the system risks being petrified.⁸⁵ Under the system prior to the entry into force of Protocol No 16, the ECtHR would have no opportunity to address national courts’ concerns, simply because the latter would be bound by the established ECtHR case law so that the potential applicant could not claim a victim status (Article 34 ECHR).⁸⁶ By that, the Strasbourg Court would be deprived of an opportunity to correct, or at least to fine-tune its case law.⁸⁷ As is well-known, the ECtHR does not stick to a system of strictly binding precedent—it is ‘not formally bound to follow its previous judgments’.⁸⁸ While normally, one would expect the Strasbourg Court to follow a line of jurisprudence because ‘it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases’, at the same time the Court admits that a failure ‘to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement’.⁸⁹ So, if the ECtHR itself is not strictly bound by an abstract reading of the Convention, why should the national judges be?⁹⁰

It would seem that this understanding also finds support in the position taken by the States Parties at various reform conferences.⁹¹ Thus, in the Interlaken Declaration the States Parties committed themselves to

taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system.⁹²

In the words of the Brighton Declaration, national courts and tribunals should be enabled and encouraged to ‘take into account the relevant principles of the Convention, having regard to the case law of the Court, in conducting proceedings and formulating judgments’.⁹³ This is certainly less than a requirement of strict adherence to ECtHR standards but leaves room for divergent views of national judges.

A corroboration of the above considerations may be found in Protocol No 16 which entered into force on 1 August 2018.⁹⁴ Under this Protocol, it was carefully avoided to grant the ECtHR’s advisory opinions binding effect (Article 5 of Protocol No 16). In the Explanatory Report, it was underlined that advisory opinions shall not be binding so as to enable ‘judicial dialogue between the Court and domestic courts and tribunals’.⁹⁵ Advisory opinions, which will be automatically rendered by a Grand Chamber (Article 2 § 2 of Protocol No 16), will

form part of the case-law of the Court, alongside its judgments and decisions. The interpretation of the Convention and the Protocols thereto contained in such advisory opinions would be analogous in its effect to the interpretative elements set out by the Court in judgments and decisions.⁹⁶

If anything else was needed to demonstrate that the res interpretata effect of Strasbourg jurisprudence does not create binding obligations on States Parties, Article 5 of Protocol No 16 gives the final proof. The res interpretata effect of ECtHR judgments may be qualified as being of a de facto but not of a de jure nature. In this sense, national judges may be said to have a certain right to contradict ECtHR jurisprudence.⁹⁷

3. The Need for Respectful Disobedience

It should go without saying that such a ‘right’ of national judges to disobey an ECtHR line of jurisprudence must not be unfettered. If too many national judges disobey too often, we will end up in a cacophony of voices which would significantly impair the Court’s authority.⁹⁸ One cannot but agree with what Lord Philips said in Horncastle—although dealing directly with the obligation under section 2(1) of the Human Rights Act but it would seem that his position aptly illustrates also the requirements under international law:

The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court.⁹⁹

Thus, a national judge must not bluntly ignore ECtHR case law but will be required at least to enter into an in-depth analysis of the Court’s case law and to give reasons why it thought it was necessary to depart from Strasbourg. In other words, the national judge must engage bona fide in a dialogical relationship with Strasbourg. In this sense, Anne Peters supports a right to resist as a means of last resort, provided such right is exercised in good faith and the national actors enter into a constructive dialogue.¹⁰⁰ In any event, direct confrontation which assaults the Court’s authority must be avoided.

This brings us back to the notion of ‘principled resistance’ and the necessity of drawing the fine line between ‘principled resistance’ and mere ‘disagreement’ cases. Given the fact that under res interpretata, national judges are entitled to present a reading of the Convention divergent from Strasbourg case law, such cases should normally count for mere disagreement. Where the disagreement is particularly strong and lacks due regard to the Court’s authority, however, it may transmute into ‘principled resistance’. Thus, the style and language of the national judge deviating from Strasbourg become primordially important.

The previous chapters have shown a great variety of techniques employed by national courts in this regard. As for Germany, examples of ‘implicit’ or ‘concealed’ resistance have been identified¹⁰¹: Instead of diametrically opposing the findings of the ECtHR, the Federal Constitutional Court in a number of cases reinterpreted the ECtHR’s judgment in a way that allowed it to uphold its own constitutional law principles. Similar observations apply to Austria where the core-periphery-theory allowed the Constitutional Court to stick to its narrowed reading of the ‘civil’ limb of Article 6 § 1 ECHR with the result that divergent interpretations of the Constitutional Court and the ECtHR coexisted for decades. It was only the legislator who, by way of a constitutional amendment, brought the Austrian legal order fully in line with the Convention requirements.¹⁰² As for the UK, principled forms of UK criticism were qualified as a ‘warning’ to Strasbourg not to go too far with its evolutive interpretation. The UK Supreme Court is nowadays more willing to adopt a robust stance vis-à-vis Strasbourg, in order to influence the outcome of the ECtHR’s jurisprudence—with apparently good success.¹⁰³ Still another technique surfaced in Italy: Here, the systemic difference between the ECtHR deciding individual cases and the Constitutional Court addressing questions of constitutionality in abstracto was adduced as an argument to allow the latter a different balancing exercise, compared to the Strasbourg decision.¹⁰⁴ The Swiss Tribunal fédéral’s attitude, finally, was characterised by Helen Keller and Reto Walther as ‘criticism but compliance’.¹⁰⁵

On the other hand, criticism will be detrimental where its real aim is to attack the ECtHR’s authority, as witnessed in parts of the political debates in both Switzerland and the UK.¹⁰⁶ In this regard, there is a clear parallelism with the notions of ‘pushback’ and ‘backlash’ as developed by Mikael Rask Madsen, despite the conceptual differences.¹⁰⁷

Vladislav Starzhenetskiy made the interesting proposal of interpreting the Russian Constitutional Court’s reaction to the ECtHR’s Anchugov and Gladkov judgment as a ‘creative adaption of a classic “persistent objector” rule that is applied in context of international customary law’.¹⁰⁸ This proposal can be endorsed for the res interpretata effect of ECtHR judgments. As established elsewhere, the Convention States have accepted the ECtHR’s dynamic and evolutive interpretation only with the proviso that the Court may advance a new understanding of a Convention right but that they (the States) may either accept this by adhering to the respective jurisprudence or may oppose it by expressing contradiction.¹⁰⁹ This ‘persistent objector’ rule, however, cannot detract from the res judicata effect under Article 46 § 1 ECHR.¹¹⁰ In this regard, the Convention allows for no ‘public order’ exception.

4. Different Significance for Chamber and Grand Chamber Judgments?

One contested issue remains, namely whether between Chamber judgments and Grand Chamber judgments there is a difference in value as res interpretata. The Italian Constitutional Court in its Decision No 49/2015 required ordinary courts to comply only with ‘consolidated European case law concerning the relevant Convention provision’, which is arguably not the case where ‘the decision made originates from an ordinary division and has not been endorsed by the Grand Chamber’.¹¹¹ Similarly, Lord Neuberger in Pinnock opined that the UK Supreme Court ‘should usually follow a clear and constant line of decisions’ by the ECtHR but that it was ‘not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber’.¹¹² This ‘(in theory, at least)’ demonstrates that Lord Neuberger, too, attaches particular weight to Grand Chamber judgments (although most recent Supreme Court jurisprudence demonstrates that even Grand Chamber judgments are not absolutely immune from being opposed to by the Supreme Court jugdes).¹¹³

In legal doctrine, Adam Bodnar concedes that the picture concerning the res interpretata value of Chamber judgments is ‘quite blurred’.¹¹⁴ On the one hand, in many cases, there will be only Chamber judgments so that negating them any res interpretata effect would unduly cut down their actual importance. On the other hand, he advocates for a cautious approach, given the workload of the Chambers and possibility of divergence between the Sections in which they are operating. Therefore, he concludes that ‘one should not take the Chamber judgment into account too seriously as regards its interpretative value, especially if there is a chance for the Grand Chamber to adjudicate on the same or a similar issue’.¹¹⁵ Jörg Polakiewicz while even propagating a legally binding nature of the res interpretata effect at the same time admits that it may be difficult to extract from Chamber judgments generalizable principles since these judgments are often mere ‘decisions on the facts’.¹¹⁶

The Court, however, rejected such propositions in its most recent GIEM Srl judgment, emphasising that ‘its judgments all have the same legal value. Their binding nature and interpretative authority cannot therefore depend on the formation by which they were rendered’.¹¹⁷ In his partly concurring, partly dissenting opinion, Judge Pinto de Albuquerque further elaborated on the matter. He criticised the criteria brought forward by the Italian Constitutional Court for establishing ‘consolidated case law’ as too imprecise.¹¹⁸ With special regard to the difference made between Chamber judgments and Grand Chamber judgments, he submitted that this criterion ‘finds no ground in the Convention’: ‘Final judgments issued by Chambers do not need a Grand Chamber ratification to have full legal force. The legal force of a Grand Chamber judgment is exactly the same as that of a Chamber judgment’.¹¹⁹

In assessing these arguments, it is necessary to make a distinction between the ‘binding nature’ of ECtHR judgments (i.e. their res judicata effect) and their ‘interpretative authority’ (their res interpretata effect). As for the former, it is true that Article 46 § 1 ECHR makes no distinction whatsoever between Chamber judgments and Grand Chamber judgments. Once a Chamber judgment has become final (Article 44 § 2 ECHR), its legally binding force is very much the same as that of a Grand Chamber judgment (Article 44 § 1 ECHR).

With regard to the res interpretata effect, however, things are more complicated. It is true that the difference between Chamber judgments and Grand Chamber judgments cannot be decisive per se. In this sense, the Court is correct to hold that the interpretative authority of its judgments cannot ‘depend on the formation by which they were rendered’.¹²⁰ It is submitted, however, that even national judges acting bona fide may find it difficult to discern a clear and constant line of jurisprudence,¹²¹ not the least because in individual applications, the Court normally ‘confine[s] its attention, as far as possible, to the issues raised by the concrete case before it’.¹²² The plea for greater clarity and consistency of the Court’s case law that could be heard during the whole reform process¹²³ originates exactly therefrom. Undeniably, the question whether or not a particular line of ECtHR case law is ‘constant’, ‘established’ or ‘consistent’ gives the national judges a certain amount of leeway. However, this should not be seen as intended ‘to free ordinary judges from their obligation under the Convention to give full effect to the Court’s judgments’ as Judge Pinto de Albuquerque does.¹²⁴ Rather, it should be seen as an element in the dialogical relationship between Strasbourg and the national courts, provided the national court acts in good faith.

V. What Makes a ‘Principled Resistance’ Case?

The question remains, then, what triggers ‘principled resistance’? Is it the hierarchy of norms? Is it national identity? Or is it, maybe, something else?

1. Hierarchy of Norms

A significant number of countries scrutinised in this volume adhere to the supreme status of the national constitution vis-à-vis international treaties in general, and the Convention in particular. It would seem that the hierarchical supremacy of the constitution is at least an important factor contributing to the possible scenario of ‘principled resistance’.

Thus, Article 15(4) of the Russian Constitution grants international agreements concluded by the Russian Federation prevalence over rules ‘stipulated by law’. The Russian Constitutional Court in its seminal 2015 decision held that this provision does not detract from the ‘supremacy and the highest legal force of the Constitution’. Therefore, ‘neither the Convention for the Protection of Human Rights and Fundamental Freedoms as international treaty of the Russian Federation nor legal positions of the European Court of Human Rights based on the Convention containing appraisals of national legislation or concerning the need to alter its provisions, do not abrogate from […] Russia’s legal system the priority of the Constitution’.¹²⁵ The German Federal Constitutional Court in a long line of cases going back to the 1980s adheres to the position that under German law, the Convention enjoys ordinary statute rank.¹²⁶ This made the Constitutional Court insist on the ‘final word’ of constitutional sovereignty.¹²⁷ As for Italy, the Constitutional Court’s seminal twin judgments of 2007 accorded the Convention rules an intermediate rank between the Constitution and ordinary statutes (‘interposed norms’).¹²⁸ It thereby upheld the supremacy of the Italian Constitution and at the same time ‘asserted its monopoly over any conflict between Convention and domestic law’.¹²⁹

Still, previous chapters have also shown that hierarchy as such is not decisive in and of itself. Constitutional courts have developed interpretative techniques which aim at minimising the potential for conflicts. In this sense, the Federal Constitutional Court, despite the inferior rank of the Convention, accepts that both the Convention and the ECtHR case law serve as a source of inspiration for interpreting the guarantees of the Basic Law.¹³⁰ According to this line of jurisprudence,

the guarantees of the European Convention on Human Rights have constitutional significance in that they influence the interpretation of the fundamental rights and rule-of-law principles of the Basic Law. According to the established case-law of the Federal Constitutional Court, the text of the Convention and the case-law of the European Court of Human Rights serve, on the level of constitutional law, as interpretation aids to determine the contents and scope of fundamental rights and of rule-of-law principles of the Basic Law, provided that this does not lead to a restriction or reduction – which the Convention itself does not intend (see Article 53 of the European Convention on Human Rights) – of protection of fundamental rights under the Basic Law.¹³¹

The hierarchical rank of the Convention under national law is not even decisive in countries where the Convention enjoys equal rank with the national constitution, in the sense that this sole fact does not entirely preclude the possibility of conflicts either. It should be recalled that in Miltner, the Austrian Constitutional Court adumbrated that a conflict with basic constitutional principles (‘Baugesetze’ or ‘Grundprinzipien’) might result in a situation where the Court is unable to implement a given ECtHR judgment on its own.¹³² So, while the internal hierarchy of norms enables a national actor (mainly the constitutional courts) to withstand influence coming from Strasbourg, this sole fact does not sufficiently explain the phenomenon of ‘principled resistance’.

2. National Identity

Cases of ‘principled resistance’ have been characterised as conflicts that lead ‘to a permanent blockade, in the sense that an ECtHR judgment cannot and will not be implemented’.¹³³ The sole fact that there is a clash between the national constitution and the Convention does not necessarily lead to this scenario. In such a case, (only) constitutional courts will be prevented from enacting the legislative amendment necessary to implement the Strasbourg judgment, since the national constitution is the very yardstick for their own activities. This does not imply, however, that the legislator will be barred from enacting a constitutional amendment.¹³⁴

Things are different where the ‘national identity’ is at stake. In this case, even the legislator will have difficulties to enact a constitutional amendment. The problem with this concept, however, is its fuzzy nature. One cannot but agree with Judge Pinto de Albuquerque pointing to the fact ‘that “national identity” is a bon à tout faire, which is easily confounded with the opportunistic assessment of the “national interest” in the particular political and social context of a given case’.¹³⁵ The examples discussed in the present volume support this argument since for most of them, it is highly questionable whether they satisfy the ‘national identity’ criterion.

Thus, in the Austrian Miltner case an issue of institutional law (the available administrative law remedies) was at stake. Even if the Austrian Constitutional Court qualified this as pertaining to the ‘basic constitutional principles’¹³⁶—was it enough to bring it into the realm of ‘national identity’? Similarly, the German Federal Constitutional Court in its 2018 judgment opined that the ban on strike action for civil servants ‘is a traditional principle of the career civil service system and a traditional element of the German state structure’ which made it conclude that ‘many arguments would support’ that it is also ‘a fundamental constitutional principle’.¹³⁷ Arguably, this part of the decision may be understood as referring to the unalterable ‘noyau dur’ as enshrined in Article 79(3) of the Basic Law.¹³⁸ But is this question significant enough to elevate it to the level of ‘national identity’? As for the voting rights for serving prisoners, Lord Sumption himself regarded the proposition that a ‘fundamental feature of the law of the United Kingdom’ was at stake ‘an extreme suggestion’ which he rejected.¹³⁹ Should the assessment be different with regard to Russia, for the sole fact that the disenfranchisement formed part of the Russian Constitution that is particularly difficult to amend? And is it sustainable to argue that in case of large sums of just satisfaction being paid from the State budget, the national identity of Russia would be compromised?

Furthermore, Judge Pinto de Albuquerque criticised the Italian Constitutional Court for having taken conflicting positions in the CJEU proceedings known as Taricco II¹⁴⁰ on the one hand and in the Convention context on the other hand:

How can the same Constitutional Court argue before the Court of Justice of the European Union that the statute of limitations is a substantive guarantee of criminal law, subject to the principle of legality – a distinct, major feature of the “supreme constitutional principles of the constitutional order of a member State” and of the “inalienable rights of the person recognised by the Constitution of a member State”, in sum, of the Italian “national identity” – and at the same time plead before the Strasbourg Court that it is an irrelevant feature of Italian law for the purposes of the legality principle, which does not even preclude non-conviction-based confiscation in matters of site development where the offence is statute-barred? Why does the mechanism of the right to be forgotten (meccanismo del tempo dell’oblio) represent a crucial characteristic of Italian constitutional law to oppose the application of a penalty in Luxembourg, but not in Strasbourg?¹⁴¹

All this demonstrates that the concept of ‘national identity’ is particularly problematic and prone to manipulation.

On the other hand, there are examples from international human rights adjudication where arguably, national identity was at stake but still, the national constitution was amended.¹⁴² A noteworthy example to this effect is the Irish ban on abortion. As is well-known, Irish law used to contain a particularly strict prohibition of abortion, which had been inserted into the Irish Constitution by way of a referendum in 1983. This had as a consequence that inter alia, the Lisbon Treaty was accepted by the Irish people in a second referendum only after the insertion of Protocol (No 35) which shielded Article 40.3.3 of the Irish Constitution against any influence coming from EU level.¹⁴³ As for the Convention context, the ECtHR in 2010 confirmed its view that ‘the impugned restrictions […] were based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum and which have not been demonstrated to have changed significantly since then’.¹⁴⁴ As a result, the ECtHR granted a particularly wide margin of appreciation, which was decisive for the finding of a non-violation with respect to the first two applicants. The Human Rights Committee, by contrast, in Mellet did not follow the example of the Strasbourg Court¹⁴⁵ but held that the strict provisions of Irish abortion law were in breach of the rights guaranteed under the ICCPR.¹⁴⁶ In reaction to this, the Irish Government held a referendum in May 2018 which resulted in the abolishment of Article 40.3.3 of the Irish Constitution.¹⁴⁷ So, in a situation where the ECtHR seems to have acted cautiously in order to avoid confrontation with the ‘national identity’, this criterion was not invoked against the (non-binding!) views of the Human Rights Committee.

The question remains: Will France react in a similar way concerning the ban on wearing the full veil in public? Like in the Irish case, the ECtHR had granted France a particularly wide margin of appreciation¹⁴⁸ while the Human Rights Committee subsequently pleaded for a violation of the ICCPR.¹⁴⁹ Although the ban on wearing a full veil has not been enshrined in the French Constitution, it is submitted that this case is closely linked to the ‘national identity’ of France since the very concept of ‘living together’ in society is at stake.¹⁵⁰ The ICCPR examples demonstrate how difficult it is to make a proper assessment of what may actually be regarded a State’s ‘national identity’.

3. The Proper Allocation of Power

Conflicts between the Convention and national constitutional law do not exist in abstracto but are the result of interpretation by national actors (especially constitutional courts). This is particularly clear in Anchugov and Gladkov where the ECtHR had invited the Russian Constitutional Court to explore the possibilities of a Convention-friendly reading of the Russian Constitution¹⁵¹ but the latter declined to do so.¹⁵² Similarly, ‘national identity’ is no clear-cut category but can be qualified as an ‘imagined, constructed, simplified, and, to some extent, fictitious “constitutional self-image”’.¹⁵³ In both cases, the question of who is competent to interpret the constitution and to construe national identity is of paramount importance. From that, one may conclude that cases of ‘principled resistance’ (or threats thereof) can be interpreted as a struggle about the proper allocation of power.¹⁵⁴ Who is the final arbiter and therefore has the last word—the national legislator, the national constitutional court, or the Court in Strasbourg?

In a country like the UK following the Westminster model, the tension will be primarily between the national legislator and the ECtHR. According to the prevailing view of political constitutionalism, policy issues should be decided by democratically elected parliamentarians, rather than by judges. From the UK perspective, therefore, the appropriateness of having certain issues decided by the Strasbourg Court is central.¹⁵⁵ Other jurisdictions (like the German or Italian one) are more acquainted with the influence of judges in policy questions. Here, the line of conflict is more likely to be between the national constitutional courts and the ECtHR.

The likeliness of conflicts is influenced by the general political climate within which the Court is operating. In this regard, the case law of the Court which has become more and more sophisticated over the past 60 years is confronted with the rise of populist and totalitarian movements tainting the climate of the whole continent. The alarming words of Judge Pinto de Albuquerque cited at the beginning of this chapter should be taken seriously in this regard. On the other hand, there are some positive developments, too. The rejection of the Swiss self-determination initiative was a clear signal of adherence to the authority of the ECtHR. Furthermore, the Slovenian Supreme Court after a misleading press release which could be interpreted as implying that the Slovenian court intends to reject an ECtHR judgment¹⁵⁶ subsequently withdrew its pronouncement after a wave of criticism.¹⁵⁷ So, while the warning about the ‘risk of a contagion of disobedience among Council of Europe member States’ definitely has its merits,¹⁵⁸ there are some positive signals.

One peculiarity of the Convention system is that it provides only for a judicial oversight mechanism. In this respect, the Convention significantly diverges from the EU model where a fully-fledged polity with a legislative branch of government has been established. Therefore, the addressee of the national identity clause under Article 4(2) TEU is not only (not even primarily) the CJEU but the EU legislator whose task it is to find a balance between the national identities of the Member States and the identity of the EU.¹⁵⁹ Under the Convention, the dialogue is primarily one between judicial actors. This is what makes the Convention system a test case for what was called, for the purposes of this volume, ‘principled resistance’.