Encouraging Judicial Dialogue

Abstract

Introduction As underlined by the editor of this volume and by other contributors, much remains to be explored as to ‘how judges learn about foreign law developments’. This chapter lifts the veil on one of the ways via which judges – in this context, judges of the European Court of Human Rights (ECtHR or the Court) – learn about foreign legal material: the contributions made by amici curiae, or ‘friends of the court’. The hypothesis that ECtHR judges find inspiration to look at the jurisprudence of other courts in amicus curiae briefs stems from judgments directly indicating that comparative elements were brought by amici, from statements of the judges themselves and from scholarly literature. The hypothesis is thus the following: briefs which try to inform and/or to influence the Court by engaging in comparative legal analyses and by referring to various international, regional and domestic court decisions can encourage the Court to have this ‘dialogue’. This contribution empirically examines whether, and in what form, amici indeed bring this information in their briefs to the ECtHR, and whether traces of the comparative references of the briefs can be found in the Court’s judgments. An exploration of the briefs’ content and their influence on the judgments helps to explain one of the methods through which ECtHR judges become aware of foreign decisions. It also seeks to provide answers to questions asked in this volume regarding the impact of the Court’s use of amicus curie briefs on the extent, methods and purposes of the ECtHR’s engagement in judicial dialogue. This chapter focuses on the briefs submitted by human rights non-governmental organisations (NGOs) to the Grand Chamber of the ECtHR. This topic is particularly relevant, as no empirical work has yet examined the content of the briefs and drawn the link with the practice of the ECtHR’s judicial dialogue. While some studies have closely examined the role of civil society organisations before the ECtHR, they do not focus on the comparative material that their briefs bring before the Court. Most authors who assert that amici play an important role base their findings on a small number of cases, often those that are most frequently cited; or they only rely on the references in the judgments.