The Boundaries to Dialogue with the European Court of Human Rights

Summary

ABSTRACT

This article aims to answer the question which legal boundaries are applicable when domestic courts engage in a dialogue with the European Court of Human Rights (ECtHR) about a Strasbourg judgment. This question is answered from an international legal perspective, i.e. the perspective of the ECtHR, and the perspective of eleven domestic legal orders. Where possible, this article will comment on the practical significance of the legal boundaries found, so as to put their significance into perspective.

INTRODUCTION

The States Parties to the European Convention on Human Rights (ECHR) have invited the European Court of Human Rights (ECtHR) to ‘ deepen ‘ its dialogue with the highest national courts ‘ further ‘. For the ECtHR, dialogue is a ‘ high priority ‘ as well. Dialogue has been on the agenda of the ECtHR and the States for some years and, therefore, has turned out to be more than just a fashionable buzzword; it is here to stay. The States Parties have even drafted a ‘ Protocol of Dialogue ‘ to the ECHR. This optional protocol will enable the highest domestic judges to request the ECtHR to give an advisory opinion on questions of principle relating to the ECHR. The requesting court should present, inter alia, a‘statement of its own views on the question ‘ and decide itself ‘ on the effects of the advisory opinion in the domestic proceedings ‘. The Protocol thus makes it possible for the domestic and European judges to respond to each other. The appeal of engaging in a dialogue with the ECtHR is clear: it facilitates that domestic judges can explain to the ECtHR how their legal system works and why they make certain choices within their specific domestic context. Dialogue can, thus, contribute to the smooth cooperation between the ECtHR and the domestic judges. Nevertheless, not every instance of dialogue has been equally eagerly applauded.