Comparative Law at the European Court of Human Rights: Does Context Still Matter?

Summary

1. INTRODUCTION

According to Günter Frankenberg, comparative legal scholars must decide ‘how to compare, what to compare and, especially, what to look out for’. It would appear that this definitive statement sets a sort of preliminary task for all comparative studies to achieve. However, the outcome may depend on several variables, with context and scope of comparison playing a pivotal role. Nevertheless, no matter the subject of comparison, comparative discussions tend to share a fundamental characteristic: the capacity to debunk myths and superficial narratives.

Whether from a functional, structural or critical comparative perspective, it is generally agreed that the study of legal phenomena across jurisdictions is a complex undertaking. A broad awareness of ‘cognitive limitations’ and the need for ‘cultural immersion’ have become the methodological bases for conducting an adequate comparison.

When comparison is performed by judges, the method and scope of comparison is certainly relevant. On the other hand, in cases where comparison is merely a factor considered when reaching a judicial decision, cultural awareness and cognition of unspoken rules are both required, in order to avoid decisions founded on biased and erroneous premises.

Based on the above, the recourse to comparative analysis by the European Court of Human Rights (ECtHR) raises several problems, which derive both from the very nature and scope of the Strasbourg Court, and on its oversimplified use of comparison. Although this issue has already been extensively addressed by the literature, it seems appropriate to analyse the problem once again, both in light of some important recent decisions, and under the new consultative mechanism provided by Protocol no. 16 to the European Convention of Human Rights (ECHR).

In general, the Court’s area of competence puts it in the position to reconcile two apparently conflicting requirements: on the one hand, the uniformity of the protection of fundamental rights in the Member States of the Council of Europe, and, on the other, the necessity of respecting the legal, social and cultural differences between the said Member States. In this context, comparison may constitute a useful balancing tool, but only if applied with a mindful approach that goes beyond the idea of a mere ‘comparison by columns’, i.e. a mere comparison of legislation currently in force in different legal systems.