The Domestic Judiciary in the Architecture of the Strasbourg System of Human Rights

Abstract

Abstract The Strasbourg system of human rights has been going through a backlog, legitimacy, and implementation crisis during the past decade. Debates addressing the future of the ECHR system and seeking answers to those challenges have concentrated on the domestic level of the Strasbourg system. This chapter concurs that domestic actors, and the domestic judiciary in particular, are essential for the effectiveness and legitimacy of the Strasbourg system since they ‘diffuse’ the ECtHR’s conclusions domestically and subsequently ‘filter’ human rights claims. However, the chapter seeks a more nuanced approach to the role of domestic courts in the architecture of the ECHR system. It problematizes the contribution of domestic courts to the ECHR’s effectiveness on three accounts. First, courts are not the sole actors involved in domestic implementation mechanisms. The judiciary enters into multiple interactions with other domestic actors and is not necessarily always victorious. Second, there are several actors within the judiciary who may have different attitudes to the ECtHR such as the constitutional court, apex courts, lower courts, court presidents, and judicial associations. Third, not all those actors unequivocally support implementation of Strasbourg case law and some of them have shown considerable resistance to the ECtHR. These insights should provide a more nuanced basis for addressing the future of the ECHR system.