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Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights

Published online by Cambridge University Press:  06 March 2019

Markus Fyrnys

Extract

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The institutional design of the Strasbourg system that has evolved over the last decades is an expression of contemporary debates surrounding the system's very nature and purpose. The current debate primarily bears on the range of choices that the Council of Europe faces in adapting to the changes in Europe, which largely have been caused by its expansion to cover nearly all post-Communist States of Central and Eastern Europe since the 1990s. This expansion, and with it the extension of the scope of the European Convention on Human Rights (the Convention) to now more than 800 million people in forty seven countries, has confronted the European Court of Human Rights (the Court) with a far broader range of human rights problems than had previously existed. By 2010, the number of pending cases had risen to 139,650 but the Court's adjudicative capacity remains limited.

Type
III. Judicial Lawmaking to Protect the Individual: The IACtHR, the ECtHR, and the ICTY
Information
German Law Journal , Volume 12 , Issue 5: Beyond Dispute: International Judicial Institutions as Lawmakers , 01 May 2011 , pp. 1231 - 1260
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 Harmsen, Robert, The European Court of Human Rights as a ‘Constitutional Court': Definitial Debates and the Dynamics of Reform, in: Judges, Transition, and Human Rights, 33 (John Morison, Kieran McEvoy & Gordon Anthony eds, 2007).Google Scholar

2 On the latest data, see Eur. Court H.R., Analysis of Statistics 2010, 7. On the Court's adjudicative capacity, see Steering Committee for Human Rights (CDDH), Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention, Document CM(2004)65 Addendum, 7 April 2004, para. 7, also published in 26 Human Rights Law Journal 90, 91 (2005).Google Scholar

3 See The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions, (Rüdiger Wolfrum & Ulrike Deutsch eds, 2009).Google Scholar

4 Greer, Steven, The European Convention on Human Rights: Achievements, Problems and Prospects 7 (2006), stating that the Court “is already ‘the Constitutional Court for Europe', in the sense that it is the final authoritative judicial tribunal in the only pan-European system.” See also Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights?, 23 Human Rights Law Journal 161, 162 (2002). On the constitutional role of the Inter-American Court of Human Rights, see Christina Binder, The Prohibition of Amnesties by the Inter-American Court of Human Rights, 12 German Law Journal 1203 (2011).Google Scholar

5 Harmsen (note 1), 36.Google Scholar

6 Wildhaber (note 4), 162.Google Scholar

7 On the lawmaking role of judicial decisions, see Armin von Bogdandy & Ingo Venzke, Beyond Dispute? International Judicial Institutions as Lawmakers, 12 German Law Journal 979, 986 (2011).Google Scholar

8 Harmsen (note 1), 36.Google Scholar

9 Tomuschat, Christian, Individueller Rechtsschutz: das Herzstück des “ordre public européen” nach der Europäischen Menschenrechtskonvention, 30 Europäische Grundrechte Zeitschrift 95, 96 (2003).Google Scholar

10 Around 90 % of all individual applications are inadmissible.Google Scholar

11 On a systematic analysis of different types of pilot judgments, see Philip Leach, Helen Hardman, Svetlana Stephenson & Brad K. Blitz, Responding to Systematic Human Rights Violations 13 (2010).Google Scholar

12 Wildhaber, Luzius, Pilot Judgments in Cases of Structural or Systematic Problems on the National Level, in: The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions, 69, 71 (Rüdiger Wolfrum & Ulrike Deutsch eds, 2009).Google Scholar

13 Klein, Eckart, Should the Binding Effect of the Judgments of the European Court of Human Rights be Extended?, in: Protecting Human Rights: The European Perspective – Studies in Memory of Rolv Ryssdal, 705, 706 (Paul Mahony, Franz Matcher, Herbert Petzold & Luzius Wildhaber eds, 2000).Google Scholar

14 Art. 1 of the Convention reads: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”Google Scholar

15 Leuprecht, Peter, The Execution of Judgments and Decisions, in: The European System for the Protection of Human Rights, 801, 812 (Ronald St. J. Macdonald, Franz Matscher & Herbert Petzold eds, 1993).Google Scholar

16 Klein (note 13), 706.Google Scholar

17 Ress, Georg, The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order, 40 Texas International Law Journal 359, 374 (2005).Google Scholar

18 Id., 706. Parliamentarians across Europe sometimes consult the Courts case law when drafting and revising statutes and administrative regulations, see Tom Barkhuysen & Michel L. van Emmerik, A Comparative View on the Execution of Judgements of the European Court of Human Rights, in: European Court of Human Rights: Remedies and Execution of Judgments, 1, 15 (Theodora A. Christou & Juan Pablo Raymond eds, 2005). On the differences of the effect of the judgments of the Inter-American Court of Human Rights, see Binder (note 4), 1218.Google Scholar

19 Polakiewicz, Jörg, Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte 251 (1993).Google Scholar

20 Eur. Court H.R., Marckx v. Belgium, Judgment of 13 June 1979, Series A, No. 31, paras 25-68.Google Scholar

21 Eur. Court H.R., Maestri v. Italy, Judgment of 17 February 2004, Reports of Judgments and Decisions 2004-I, para. 47.Google Scholar

22 Jochen Abr. Frowein, The Binding Force of ECHR Judgments and its Limits, in: Human Rights, Democracy and the Rule of Law – Liber amicorum Luzius Wildhaber, 261, 262 (Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel & Beatrice Wagner Pfeifer eds, 2007).Google Scholar

23 In order to adapt its legislation to the requirements of the Convention for cases, which are merely parallel as they are normatively not pre-determined by law at the national level, the State Party is obligated to do legal “comparisons” because cases have to be tested whether they are truly in parallel to the case decided by the Court or whether they can for some reason be distinguished, Hans-Joachim Cremer, Human Rights and the Protection of Privacy in Tort Law 12 (2010).Google Scholar

24 Jochen Abr. Frowein & Wolfgang Peukert, Europäische Menschenrechtskonvention Kommentar 604 (2009). The non-application of the legal provision violating the Convention is insufficient. The existence of the legal provision presents a steady and imminent danger to the Convention guarantees. In democracies governed by the rule of law the law-applying national authorities will have difficulties avoiding the application of a norm that has not been nullified. Therefore legislative action is necessary, see Klein (note 13), 707.Google Scholar

25 Cremer (note 23), 11.Google Scholar

26 Id., 12.Google Scholar

27 Garlicki, Lech, Broniowski and After, in: Liber Amicorum Luzius Wildhaber – Human Rights – Strasbourg Views, 177, 183 (Lucius Caflisch, Johan Callewaert, Roderick Lidell, Paul Mahoney & Mark Villiger eds, 2007).Google Scholar

28 Eur. Court H.R., Scozzari and Giunta v. Italy, Judgment of 13 July 2000, Reports of Judgments and Decisions 2000-VIII, para. 249; Eur. Court H.R., Kudla v. Poland, Judgment of 26 October 2000, Reports of Judgments and Decisions 2000-XI, para. 150-160; Eur. Court H.R., Assanidze v. Georgia, Judgment of 8 April 2006, Reports of Judgments and Decisions 2004-II, para. 198.Google Scholar

29 Council of Europe, Collected Edition of the “Travaux Préparatoire” of the European Convention on Human Rights 45 (1975). On nullifying effects of the judgments of the Inter-American Court of Human Rights, see Binder (note 4), 1212.Google Scholar

30 Art. 41 of the Convention reads: “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Google Scholar

31 Frowein (note 22), 261; Frowein & Peukert (note 24), 603.Google Scholar

32 Eur. Court H.R., Handyside v. United Kingdom, Judgment of 18 January 1978, Series A, No. 24, para. 48; Eur. Court H.R., Sadik v. Greece, Judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, para. 30.Google Scholar

33 Frowein & Peukert (note 24), 602; Polakiewcz (note 19), 217; Helmut Steinberger, Reference to the Case Law of the Organs of the European Convention on Human Rights before National Courts, 6 Human Rights Law Journal 402, 407 (1985).Google Scholar

34 Mahony, Paul, Judicial Activism and Judicial Self-restraint in the European Court of Human Rights: Two Sides of the Same Coin, 11 Human Rights Law Journal 57, 78 (1990).Google Scholar

35 Eur. Court H.R., Marckx v. Belgium (note 20), para. 58.Google Scholar

36 Villiger, Mark E., The Principle of Subsidiarity in the European Convention on Human Rights, in: Promoting Justice, Human Rights and Conflict Resolution through International Law – Liber Amicorum Lucius Caflisch, 623, 632 (Marcelo G. Kohen ed., 2007).Google Scholar

37 Id., para. 58.Google Scholar

38 See Zwaak, Leo, The Supervisory Task of the Committee of Ministers, in: Theory and Practice of the European Convention on Human Rights, 291, 291 (Pieter van Dijk, Fried van Hoof, Arjen van Rijn & Leo Zwaak eds, 2006).Google Scholar

39 Adopted by the Committee on Ministers on the basis of Art. 46(2) of the Convention.Google Scholar

40 Interim resolutions take various forms, see Elizabeth Lambert-Abdelgawad, The Execution of Judgment of the European Court of Human Rights 40 (2002).Google Scholar

41 Id., 40.Google Scholar

42 See Steering Committee for Human Rights, Explanatory Report to Protocol No. 14 (note 2), 100; Helen Eaton & Jeroen Schokkenbroek, Reforming the Human Rights Protection System Established by the European Convention on Human Rights: A New Protocol No. 14 to the Convention and Other Measures to Guarantee the Long Term Effectiveness of the Convention System, 26 Human Rights Law Journal 1 (2005).Google Scholar

43 Helfer, Laurence & Slaughter, Anne-Marie, Towards a Theory of Effective Supranational Adjudication, 107 Yale Law Journal 273, 296 (1997); Harris, Davis, Michael O'Boyle & Collin Warbrick, Law of the European Convention 878 (2009).Google Scholar

44 Garlicki (note 27), 183.Google Scholar

45 Steering Committee for Human Rights, Explanatory Report to Protocol No. 14 (note 2), 91.Google Scholar

46 Garlicki (note 27), 183.Google Scholar

47 Lambert-Abdelgawad, Elizabeth, La Cour européenne au secours du Comité des Ministres pour une meilleure execution des Ârrets “pilot,” 61 Revue trimestrielle des droits de l'homme 203, 213 (2005); Schmahl, Stefanie, Piloturteile des EGMR als Mittel der Verfahrensbeschleunigung, 35 Europäische Grundrechte Zeitschrift 369, 371 (2008).Google Scholar

48 See Eur. Court H.R., Document CDDH-GDR (2003) 024, Position Paper of the European Court of Human Rights, 12 September 2003, paras 12-13; Harmsen (note 1), 45.Google Scholar

49 Harmsen (note 1), 45, 46.Google Scholar

50 Id., 46.Google Scholar

51 The Steering Committee for Human Rights (usually known by its French acronym, CDDH) is the expert, intergovernmental body within the Council of Europe charged with overseeing the functioning and development of the organization's human rights activities. As such, it plays a proactive role in the process of amending the Convention.Google Scholar

52 Steering Committee for Human Rights, Explanatory Report to Protocol No. 14 (note 2), 92.Google Scholar

53 Harmsen (note 1), 46.Google Scholar

54 Art. 46 of the Convention reads: “(1) The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. (2) The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. (3) If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee. (4) If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. (5) If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”Google Scholar

55 Committee of Ministers of the Council of Europe, Resolution Res(2004)3 on Judgments Revealing an Underlying Systemic Problem, 12 May 2004, 26 Human Rights Law Journal 119 (2005).Google Scholar

56 Committee of Ministers of the Council of Europe, Recommandation Rec(2004)6 on the Improvement of Domestic Remedies, 12 May 2004, 26 Human Rights Law Journal 116 (2005).Google Scholar

57 Garlicki (note 27), 184. Art. 13 of the Convention reads: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”Google Scholar

58 Committee of Ministers of the Council of Europe, Recommandation Rec(2004)6 (note 56), 117; Garlicki (note 27), 184.Google Scholar

59 Art.15.b of the Statute of the Committee of Ministers, provides for the Committee of Ministers to make recommendations to member states on matters for which the Committee has agreed “a common policy.”Google Scholar

60 Eur. Court H.R., Broniowski v. Poland (GC), Judgment of 22 June 2004, Reports of Judgments and Decisions 2004-V. Since Broniowski v. Poland in 2004 the Court had issued several judgments that are expressly identified as pilot judgments by the Court itself: Eur. Court H.R., Hutten-Czapska v. Poland, Judgment of 19 June 2006, Reports of Judgments and Decisions 2006-VIII; Eur. Court H.R., Burdov v. Russia (No. 2), Judgment of 15 January 2009; Eur. Court H.R., Olaru and others v. Moldova, Judgment of 28 July 2009; Eur. Court H.R., Yuri Nikolayevich Ivanov v. Ukraine, Judgment of 15 October 2009; Eur. Court H.R., Suljagic v. Bosnia and Herzegovina, Judgment of 3 November 2009; Eur. Court H.R., Rumpf v. Germany, Judgment of 2 September 2010; see Leach, Hardman, Stephenson & Blitz (note 11), 13.Google Scholar

61 Garlicki (note 27), 184; Harmsen (note 1), 52.Google Scholar

62 Eur. Court H.R., Broniowski v. Poland (GC), Decision on Admissibility of 19 December 2002, Reports of Judgments and Decisions 2002-X, see Garlicki (note 27), 178.Google Scholar

63 Art. 1 of Protocol No. 1 to the Convention reads: “(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (2) The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” See Garlicki (note 27), 178.Google Scholar

64 Eur. Court H.R., Broniowski v. Poland (GC) (note 60).Google Scholar

65 The relocation that took place at the end of the 1940s remains – rationae temporis – outside the jurisdiction of the Convention and the Court. The situation is different when a State Party enacts new legislation or maintains old legislation providing compensation for loss property confiscated under a previous regime. Once such a entitlement has been provided for by legislation post-dating the ratification of the Convention and of its Protocol No. 1, the compensation claim for the loss of property enjoy full protection under the Convention, Garlicki (note 27), 179, 181. See Eur. Court H.R., Broniowski v. Poland (GC) (note 60), para. 125.Google Scholar

66 Id., operative part, para. 3.Google Scholar

67 Id., operative part, para. 4.Google Scholar

68 Committee of Ministers of the Council of Europe, Resolution Res(2004)3 (note 55), 119.Google Scholar

69 Committee of Ministers of the Council of Europe, Recommandation Rec(2004)6 (note 56), 116.Google Scholar

70 Eur. Court H.R., Broniowski v. Poland (GC) (note 60), para. 190.Google Scholar

71 Id., para. 193.Google Scholar

72 Id., para. 193.Google Scholar

73 Id., paras 192, 193. See Garlicki (note 27), 185.Google Scholar

74 Eur. Court H.R., Broniowski v. Poland (GC), Judgment of 28 September 2005 (friendly settlement and just satisfaction), Reports of Judgments and Decisions 2005-IX.Google Scholar

75 Eur. Court H.R., Olaru and Others v. Moldavia (GC), Judgment of 28 July 2009, para. 49; citing Eur. Court H.R., Scozzari and Giunta v. Italy (GC), Judgment of 13 July 2000, Reports of Judgments and Decisions 2000-VIII, para. 249; Eur. Court H.R., Christine Goodwin v. the United Kingdom (GC), Judgment of 11 July 2002, Reports of Judgments and Decisions 2002-VI, para. 120; Eur. Court H.R., Lukenda v. Slovenia, Judgment of 6 October 2005, Reports of Judgments and Decisions 2005-X, para. 94; Eur. Court H.R., S. and Marper v. the United Kingdom (GC), Judgment of 4 December 2008, para. 134.Google Scholar

76 Garlicki (note 27), 186.Google Scholar

77 Habermas, Jürgen, Between Facts and Norms 192-193 (1997); Bogdandy, Armin von & Venzke, Ingo, Zur Herrschaft internationaler Gerichte: Eine Untersuchung internationaler öffentlicher Gewalt und ihrer demokratischen Rechtfertigung, 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1, 14 (2010); von Bogdandy & Venzke (note 7), 988, 989.Google Scholar

78 Habermas (note 77), 238 et seq.; Mahony (note 34), 58; Christoph Möllers, Gewaltengliederung – Legitimation und Dogmatik im nationalen und internationalen Rechtsvergleich (2005).Google Scholar

79 Helfer, Laurence R., Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 EJIL 125, 138 (2008).Google Scholar

80 Eur. Court H.R., Loizidou v. Turkey, Judgment of 23 March 1995, Series A, No. 310, para. 75.Google Scholar

81 For the concept of international public authority, see Armin von Bogdandy, Philipp Dann & Matthias Goldmann, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 German Law Journal 1375, 1381 (2008). See for judicial decisions von Bogdandy & Venzke (note 7), 989.Google Scholar

82 Compare von Bogdandy & Venzke (note 7), 990. More generally on the international judiciary in a constitutionalist reading, Geir Ulfstein, The International Judiciary, in: The Constitutionalization of International Law, 126, 127 (Jan Klabbers, Anne Peters & Geir Ulfstein eds, 2009).Google Scholar

83 Art. 35 of the Convention reads: “(1) The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47. (2)In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.”Google Scholar

84 Vallinder, Torbjörn, When the Courts go Marching in, in: The Global Expansion of Judicial Power, 13 (C. Neal Tate & Torbjörn Vallinder eds, 1995).Google Scholar

85 Mahony (note 34), 78.Google Scholar

86 Art. 1 of the Convention reads: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” See Mahony (note 34), 78.Google Scholar

87 Eur. Court H.R., Loizidou v. Turkey (note 80), para. 75.Google Scholar

88 Helfer, Laurence R., Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 EJIL 125, 131 (2008).Google Scholar

89 Eur. Court H.R., Norris v. Ireland, Judgment 26 October 1988, Series A, No. 142, para. 50; Eur. Court H.R., Clooth v. Belgium, Judgment of 5 March 1998, Reports of Judgments and Decisions 1998-I, para. 14.Google Scholar

90 Shelton, Dinah, Subsidiarity and Human Rights Law, 27 Human Rights Law Journal 4, 9 (2006); Villiger (note 36), 632.Google Scholar

91 Eur. Court H.R., Marckx v. Belgium (note 20), para. 58.Google Scholar

92 Id., para. 48.Google Scholar

93 Villiger (note 36), 632.Google Scholar

94 Id., 632.Google Scholar

95 Mahony (note 34), 78.Google Scholar

96 Id., 81.Google Scholar

97 Eur. Court H.R., Handyside v. United Kingdom (note 32), para. 48; Eur. Court H.R., Sadik v. Greece (note 32), para. 30, see Helfer (note 79), 138.Google Scholar

98 Id., 138.Google Scholar

99 Id., 138; Ress (note 17), 374.Google Scholar

100 Eur. Court H.R., Hutten-Czapska v. Poland, Judgment of 19 June 2006, Reports of Judgments and Decisions 2006-VIII.Google Scholar

101 Id., Partly Dissenting Opinion of Judge Zagrebelsky.Google Scholar

102 Eur. Court H.R., Broniowski v. Poland (GC) (note 74), paras 5-10.Google Scholar

103 Eur. Court H.R., Hutten-Czapska v. Poland, Judgment of 28 April 2008 (friendly settlement), Separate Opinion of Judge Zagrebelsky joined by Judge Jaeger.Google Scholar

104 Committee of Ministers of the Council of Europe, CM/Inf(2008)8 final, Committee of Ministers on Human Rights Working Methods – Improved Effectiveness of the Committee of Minister's Supervision of Execution of Judgments, 7 April 2004, para 13.Google Scholar

105 Helfer (note 79), 149.Google Scholar

106 Vallinder (note 84).Google Scholar

107 Ulfstein (note 82), 150.Google Scholar

108 Bernhardt, Rudolf, Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights, 42 German Yearbook for International Law 11, 17 (1999); Mahony (note 34), 61.Google Scholar

109 Eur. Court H.R., Tyrer v. United Kingdom, Judgment of 25 April 1978, Series A, No. 26, para. 31, see Mahony (note 34), 61.Google Scholar

110 Eur. Court H.R., Ireland v. United Kingdom, Judgment of 18 January 1978, Series A, No. 25, para. 154.Google Scholar

111 Bernhardt, Rudolf, Thoughts on the Interpretation of Human Rights Treaties, in: Protecting Human Rights: The European Dimension – Studies in Honour of Gerard Wiarda, 65 (Franz Matscher & Herbert Petzold eds, 1988).Google Scholar

112 Mahony (note 34), 65.Google Scholar

113 Eur. Court H.R., Broniowski v. Poland (GC) (note 60), para. 193.Google Scholar

114 Id., Partly Dissenting Opinion of Judge Zupančič.Google Scholar

115 Eur. Court H.R., Hutten-Czapska v. Poland, Judgment of 19 June 2006, Reports of Judgments and Decisions 2006-VIII, Partly Dissenting Opinion of Judge Zagrebelsky.Google Scholar

116 Leach, Hardman, Stephenson & Blitz (note 11), 178.Google Scholar

117 Committee of Ministers of the Council of Europe, Resolution Res(2004)3 (note 55), 119.Google Scholar

118 Under Art. 20 of the Statute the Committee of Ministers, adoption of a recommendation requires an unanimous vote of all representatives present or a majority of those entitled to vote. However, at their 519 bis meeting in November 1994 the Ministers’ Deputies decided to make their voting procedure more flexible and made a “Gentleman's agreement” not to apply the unanimity rule to recommendations.Google Scholar

119 von Bogdandy & Venzke (note 7), 994.Google Scholar

120 Id. Google Scholar

121 Eur. Court H.R, Hutten-Czapska v. Poland (note 103), Concurring opinion of Judge Ziemele; citing Nuclear Tests Case (Australia v. France), ICJ Reports 1974, para. 23, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock.Google Scholar

122 von Bogdandy & Venzke (note 77), 22-25; Joshua L. Jackson, Broniowski v. Poland: A Recipe for Increased Legitimacy of The European Court of Human Rights as a Supranational Constitutional Court, 39 Connecticut Law Review 759, 799 (2006).Google Scholar

123 Ulfstein (note 82), 151.Google Scholar

124 Greer (note 4), 7; Wildhaber (note 4), 162.Google Scholar

125 Eur. Court H.R., Ireland v. United Kingdom (note 110), para. 154.Google Scholar

126 Eur. Court H.R., Loizidou v. Turkey (note 80), para. 75.Google Scholar

127 Greer, Steven, The European Convention on Human Rights: Achievements, Problems and Prospects 7 (2006).Google Scholar

128 Id., 7.Google Scholar

129 Jackson (note 122), 799.Google Scholar

130 Habermas (note 77), 240-253.Google Scholar

131 Mahony (note 34), 79.Google Scholar

132 Compare Shelton (note 90), 10, stating: “the Court has applied a reduced margin of appreciation … where the government has interfered with democratic institutions, such as dissolving political parties or restricting freedom of information on issues of public interest.” See Eur. Court H.R., Refah Partisi (The Welfare Party) and Others v. Turkey (GC), Judgment of 13 February 2003, Reports of Judgments and Decisions 2003-II; Eur. Court H.R., Scharsach and News Verlagsgesellschaft mbH v. Austria, Judgment of 13 November 2003, Reports of Judgments and Decisions 2003-XI. Nonetheless, it should grant wide margin of appreciation for matters concerning elections, noting that there are numerous ways of organising and running electoral systems and a wealth of differences in historical development, cultural diversity and political thought within Europe, see Shelton (note 90), 10.Google Scholar

133 Committee of Ministers of the Council of Europe, Resolution Res(2004)3 (note 55), 119.Google Scholar

134 Committee of Ministers of the Council of Europe, Recommandation Rec(2004)6 (note 56), 116.Google Scholar

135 Schmahl (note 47), 379.Google Scholar

136 Eur. Court H.R, Hutten-Czapska v. Poland (note 103), Concurring Opinion of Judge Ziemele.Google Scholar

137 Harmsen (note 1), 52.Google Scholar

138 Id., 52.Google Scholar

139 Id., 52.Google Scholar

140 Id., 52.Google Scholar

141 Id., 52.Google Scholar

142 Leach, Philip, On Reform of he European Court of Human Rights, 14 European Human Rights Law Review 725, 732 (2009).Google Scholar

143 See Art. 21(c) of the Statute of the Council of Europe.Google Scholar

144 Zwaak (note 38), 45.Google Scholar

145 See Art. 21(a) of the Statute of the Council of Europe.Google Scholar

146 Art. 36 of the Convention reads: “(1) In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings. (2) The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.”Google Scholar

147 Art. 45 of the Convention reads: “(1) Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible. (2) If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.”Google Scholar

148 Art. 22 of the Convention reads: “(1) The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party. (2) The same procedure shall be followed to complete the Court in the event of the accession of new High Contracting Parties and in filling casual vacancies.”Google Scholar

149 However, similar pending cases will not always be adjourned. This is a matter of discretion for the Court depending on all relevant circumstances, see Leach, Hardman, Stephenson & Blitz (note 11), 176.Google Scholar

150 Art. 34 of the Convention reads: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”Google Scholar

151 Helfer (note 79), 154.Google Scholar

152 Id., 154; citing Registrar of the European Court of Human Rights, “Pinto” cases adjourned pending decision on test case, Press Release 014, 18 January 2005, stating that the Court had adjourned over 800 Italian length-of-proceedings cases, pending its decision in a test case concerning the application of Italy's “Pinto Law.”Google Scholar

153 Helfer (note 79), 154; citing Andreas von Staden, Assessing the Impact of the Judgment of the European Court of Human Rights on Domestic Human Rights Policies, paper prepared for delivery at the Annual Meeting of the American Political Science Association, noting that a “state may prefer to simply pay just satisfaction without taking substantive steps to remedy the situation and fully remove the consequences of the violation and suggesting that many governments enter into friendly settlements for that reason.” Helfer points out that the Court “may not approve a friendly settlement unless it manifests a “respect for human rights as defined in the Convention and the Protocols thereto” in accordance to Art. 37 of the Convention.”Google Scholar

154 Leach, Hardman, Stephenson & Blitz (note 11), 176.Google Scholar

155 Id., 30.Google Scholar

156 Id., 31.Google Scholar

157 Helfer (note 79), 154.Google Scholar

158 Eur. Court H.R., Memorandum of the President of the European Court of Human Rights to the States with a View to Preparing the Interlaken Conference, 3 July 2009, 8.Google Scholar

159 Leach (note 142), 731.Google Scholar

160 Leach, Hardman, Stephenson & Blitz (note 11), 178.Google Scholar

161 Eur. Court H.R., Broniowski v. Poland (GC) (note 60), para. 193.Google Scholar