Weak and Strong International Judicial Review: Legal Policy Implications

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the third in a series of three.

In my previous post, I reviewed the Von Hannover (2) and Fatullayev cases to illustrate my argument that the standard of judicial review used by the European Court of Human Rights is variable. Notably, the Strasbourg Court chooses to employ a weaker form of judicial review when interacting with domestic courts it deems to be ‘responsible’ and a stronger form of judicial review when interacting with those it deems are not.

I term a ‘responsible’ domestic court to be one that, 1), takes Strasbourg’s interpretive principles seriously when interpreting fundamental rights and, 2), gives full-bodied reasoning when applying these principles to facts. Once a domestic court meets these criteria ‘strong reasons’ must be shown for Strasbourg to interfere with the outcome of the domestic judgment, be this violation or non-violation of rights. In contrast to this, a domestic court that fails to meet the threshold of Strasbourg-defined responsibility loses its legitimacy as a final domestic judicial authority. The European Court of Human Rights, therefore, sees itself as justified in demanding the annulment of a prison sentence confirmed by a supreme court.

What legal policy implications follow on from this? Is a variable standard of judicial review desirable? An obvious objection to this is the potential to alienate courts and political institutions in countries that are subject to harsher standards. As research on the perception of the legitimacy of the European Court of Human Rights shows, countries that are subject to stronger standards of review are also those that accuse the Strasbourg Court with employing ‘double standards’.  This has the potential of discouraging human rights compliance in countries where it is needed the most. The light touch approach also has the danger of alienating individuals in countries with responsible courts. Whilst it is easier to propose that identification of the correct procedure is distinct from the identification of the correct outcome, this is harder to distinguish in practice. In addition, applicants are primarily concerned with correct outcomes, and not with procedures.

The move away from a variable standard of judicial review may also have harmful consequences for the legitimacy and the authority of the European Court of Human Rights. Domestic courts that have made serious efforts to harmonise their acts with Strasbourg case law do so on the basis that mutual respect exists between their courts and the European Court of Human Rights. Stronger intrusion into all domestic courts for the sake of creating a level playing field would lead to a backlash from all domestic courts – regardless of their level of protection of human rights. Strong of judicial review is also what individuals demand in countries like Azerbaijan. As my research on this subject shows, domestic elites in countries such as Turkey and Bulgaria view the lack of intrusion into domestic sovereignty as a legitimacy deficit. In Germany and the United Kingdom, however, the exact opposite case was made.

On balance, a variable standard of international judicial review, I would argue, is the best strategy for an international court that looks over the shoulders of a variety of domestic legal systems with varying degrees of domestic protection of human rights. Whilst strong judicial review of courts with weak human rights protections may lead to a backlash from some judges, it may also offer an incentive for others who want to be seen as responsible internationally. The challenge for the European Court of Human Rights is to further clarify its ‘strong reasons’ test and ensure that its judgments –  whether concerning countries it deems ‘responsible’ or ‘irresponsible’ – are immune from any charges of politicization.