Weak and Strong International Judicial Review: Legal Policy Implications

by Başak Çalı

[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.

Standards of International Judicial Review: Von Hannover and Fatullayev Compared

by Başak Çalı

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

This post is the second in a series of three.

Last week I suggested that comparing the Von Hannover (2) Case of 2012 and the Fatullayev Case of 2010, both of which concern reviews of freedom of expression decisions given by supreme domestic courts, is a good way of understanding the variable standard of judicial review developed by the European Court of Human Rights.

The Von Hannover Cases (1) and (2)

The Von Hannover (2) Case was the second appearance of Princess Caroline of Monaco before the Strasbourg Court, arguing that the German press had violated her right to privacy. In the first Von Hannover Case of 2004, Princess Caroline advanced the argument that given that she does not hold a public office or have any public functions, the continuous publication of pictures depicting her private life in the German press violated her right to privacy, and the German Courts had failed to protect her. In the first case, the Strasbourg Court found a violation. In the second case it did not. From Princess Caroline’s perspective, this outcome is odd. The explanation lies in how the Strasbourg Court defines its standard of judicial review of domestic courts.  (more…)

Domestic Courts and the European Court of Human Rights: Towards Developing Standards of Weak International Judicial Review?

by Başak Çalı

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

This post is the first in a series of three.

The relationship between the highest domestic courts and the European Court of Human Rights has been subject to much debate in the past ten years in Europe. Some of this debate focuses on the backlash against the dynamic interpretation of the European Convention of Human Rights by the European Court of Human Rights. The interpretive principles such as the living instrument doctrine, and positive obligations are often thought to upset a wide variety of values including the original consent of states, democratic governance, and integrity and predictability of domestic legal systems. Some readers on the other side of the Atlantic view these debates as a good reason for remaining outside of international adjudication of human rights. Overly strong international human rights courts involved in exercises of ‘virtue ethics’ are not regarded as a good development for integrity of constitutional systems and democratic politics. Much of these debates assume that international human rights bodies, including the European Court of Human Rights, act as a Court of fourth instance, exercise their own opinions on the interpretation of facts on the ground or that they micro-manage domestic legal orders.

I would like to suggest a different framework here. Much criticism of the European Court of Human Rights and the international human rights law in general relies on the assumption that international bodies are engaged in strong judicial review. I suggest that this is a descriptive error. Much of what the European Court of Human Rights does is best understood as weak international judicial review or, at least, the development of standards of weak international judicial review in the making. Weak judicial review involves leaving an interpretive discretion to domestic courts that take into account the broader interpretive principles of the Court and admitting that where there is more than one reasonable interpretation, the Strasbourg Court will defer to the interpretation favoured by domestic high courts. This makes many of the concerns regarding micro-management of domestic systems by the Strasbourg Court ill-founded.  The most recent example of this is the Von Hannover case of 2012. In this case the Strasbourg Court is embracing this careful approach to its relationship with Constitutional and Supreme Courts, and going through special pains to signal that it wants to work with strong Supreme Courts rather than compete with them. Admittedly, for weak international judicial review to be in place the domestic court 1) has to be a strong rule of law court, and 2) must take international human rights protections seriously.  The development of the standard of weak international judicial review in the human rights field has parallels with the doctrine of  ‘responsible representative governments’ in the WTO Hormones case and points to an important emerging theme for future debate: should international courts treat different domestic courts differently as a matter of doctrine?  Do we need an explicit doctrine of ‘responsible domestic courts’ for international judicial review?

In the forthcoming post, I will review two cases from opposite ends of the Council of Europe terrain: the Von Hannover v. Germany No. 2 case of 2012 and the Fatullayev v. Azerbaijan case of 2010 to show that the European Court of Human Rights is signalling restraint when faced with a responsible domestic court and is willing to signal activism when faced with the opposite.