Introduction
The states parties to the European Convention on Human Rights (ECHR) are obliged to secure for everyone within their jurisdiction the rights and freedoms defined in the convention and to provide an effective remedy before a national authority for anyone whose rights and freedoms have been violated.Footnote 1 The European Court of Human Rights (ECtHR) authoritatively interprets the ECHR and acts as a safeguard for individuals whose rights and freedoms have not been secured at the national level.Footnote 2 In pursuance of their delineated competences, what are the principles of interaction between the ECtHR and national courts? Can the ECtHR be ranked above national constitutional jurisdictions as a sort of European Constitutional Court? Effective implementation of the case law of the ECtHR requires that national law be interpreted in harmony with it. As we shall see, the way and extent to which national constitutional bodies take into account and apply the letter of the ECHR and its interpretation by the ECtHR varies depending on the status of the convention within the given national legal order and on the relevance of the ECtHR’s interpretation of it in the practice of the relevant national constitutional jurisdiction. This will be demonstrated, first, by outlining the general context in which national constitutional jurisdictions and the ECtHR interact and, second, by reviewing the manner in which the French and the Czech constitutional jurisdictions approach the ECtHR’s rulings and, in particular, the extent to which the respective constitutional bodies of each state strive for harmony with the ECtHR.
The structure of the article proceeds from an overview of the general principles and approaches underlying the interrelationship between the ECtHR and national courts and then leads into practical examples of this interrelationship. The objective is to first give an insight into the theoretical background of the interaction between the ECtHR and national courts before approaching the concrete national supreme courts’ practice with respect to the ECHR and the case law of the ECtHR. The outline of general principles and approaches governing the interaction between the ECtHR and national courts aims at providing an understanding of the general theoretical framework within which these actors operate. Using the examples of two European jurisdictions — France and the Czech Republic — we then shall see how these principles of interaction are applied in practice. The two case studies will provide an understanding of the practical functioning of the mutual dialogue that is conducive to the attainment of greater effectiveness in the protection of fundamental rights and freedoms. We shall see that the different principles governing the dialogue between the ECtHR and national courts represent important tools of interpretation for the ECtHR in its decision-making. The way in which the ECtHR interprets the ECHR influences the jurisprudence of national courts, which in turn strive to interpret national law in harmony with the ECtHR. The examination of the status of the ECHR within the French and Czech legal orders, and the relevance of the ECHR and the case law of the ECtHR in the practice of the French and Czech supreme courts, will demonstrate the extent to which some of Europe’s highest national courts implement the interpretative approaches of the ECtHR.
Implementation of the ECHR by the ECtHR and National Courts: General Principles and Approaches
PRINCIPLES OF INTERACTION BETWEEN THE COURTS
The interaction between the ECtHR and national courts is based on the principle of subsidiarity, meaning that states have the primary responsibility to secure fundamental rights and freedoms, subject to the supervisory jurisdiction of the ECtHR, in view of the fact that national authorities are, in principle, better placed than an international court to evaluate local needs and conditions.Footnote 3 The ECHR system is subsidiary to the safeguarding of human rights at the national level and does not function as a “fourth instance” in dealing with human rights cases.Footnote 4
The principle of subsidiarity is reflected in the criterion of the margin of appreciation that the ECtHR leaves to states in cases in which there is no broad European consensus.Footnote 5 The jurisprudence of the ECtHR makes it clear that states enjoy a margin of appreciation in how they apply and implement the ECHR, depending on the circumstances of the case and the rights and freedoms engaged. The margin of appreciation goes hand in hand with supervision under the convention system. In this respect, the role of the ECtHR is to review whether decisions taken by national authorities are compatible with the ECHR.Footnote 6 Explicit reference to the principle of subsidiarity and the doctrine of the margin of appreciation is contained in Protocol No. 15 to the ECHR, which has not yet come into force.Footnote 7
The principles of subsidiarity and margin of appreciation are not the only important elements of the dialogue between the ECtHR and national jurisdictions or the only important tools of interpretation that the ECtHR has at its disposal. Equally important in the mutual dialogue is the concept of “European consensus,” which refers to an implicit consent or a trend emerging in the legal systems of the member states of the Council of Europe, or some of them, to accept a particular solution as a common standard.Footnote 8 This concept serves to restrict the margin of appreciation and to support synergies between the case law of the ECtHR and the practice of national courts. As will be discussed in greater detail later in this article, if the ECtHR finds that there is consensus on a particular issue in Europe, the margin of appreciation left to states is correspondingly reduced and, vice versa, a lack of relevant consensus among states could speak in favour of allowing a wider margin of appreciation than normally afforded.Footnote 9 Thus, European consensus facilitates interaction between member states and the ECtHR and enhances the legitimacy of the latter’s judgments.
A certain limitation on the margin of appreciation also flows from the review of proportionality conducted by the ECtHR, which “requires the Court to review the substantive, political decisions of national officials in the context of national law, thereby reinforcing the Court’s own structural supremacy.”Footnote 10 The principle of proportionality requires that a reasonable relationship of proportionality be struck between the means employed and the aim sought to be realized.Footnote 11 In other words, a measure restricting fundamental rights and freedoms must be necessary in a democratic society and must be directed at achieving a legitimate aim. As the ECtHR has specified, not only must the measure be appropriate for achieving its aim, but it also must not be disproportionate thereto.Footnote 12 The case law uses for this purpose a fair-balance test, which is expressed by the ECtHR as a requirement that a fair balance be struck between the collective interest and the interests of an individual.Footnote 13 The legal scholarship denotes this as “proportionality in the narrower sense,”Footnote 14 regarding rights as protected interests and the public interest as the common interest, which means that a suitable and necessary measure may not upset the fair balance or destroy the essence of the protected right.Footnote 15 Accordingly, the purpose of the fair-balance test is to assess whether a measure strikes a fair balance between the demands of the general interests of the community and the requirements of protection of the fundamental rights of an individual.Footnote 16
The principle of proportionality, which is a central interpretative principle in international human rights law, has acquired the status of a general principle that applies to the whole of the ECHR.Footnote 17 It has been developed by the ECtHR as a corrective and a restriction on the margin-of-appreciation doctrine,Footnote 18 as national courts, when applying the ECHR in the domestic legal context, are obliged to apply the same proportionality test as the ECtHR in order to comply with the convention’s requirements and to avoid the ECtHR finding a violation of the convention.Footnote 19 It may be argued that the wider the standard of proportionality, the narrower the margin of discretion allowed to national authorities.
The extent of the undertakings of states parties to the ECHR is also informed by the positive obligations imposed on them, whereby the ECtHR has extended the scope and impact of convention rights with a view to promoting the effective exercise of rights and freedoms guaranteed by the convention. The defining characteristic of positive obligations is that they require national authorities to take measures necessary to safeguard a right or to adopt reasonable and suitable measures to protect the rights of the individual.Footnote 20 Hence, by imposing positive obligations, the ECtHR extends the requirements that national authorities are obliged to satisfy under the convention. A certain dimension of the dialogue also emerges from civil law cases between private parties, in which the ECtHR deals with the balancing of the rights of such parties. They may give rise to divergence between the ECtHR and the state as to the attainment of the reasonable balance of the conflicting interests at stake, as shown by a recent example concerning the issue of retroactive effects of a statute implementing a judgment of the ECtHR.
The case of Fabris v France pertained to a difference in the treatment of legitimate and illegitimate children for succession purposes.Footnote 21 The applicant claimed that, on account of his status as a child “born of adultery,” he had been refused the right to request an abatement of the inter vivos division signed by his mother. Based on the facts, the Court of Cassation dismissed the applicant’s appeal in 2007, reasoning that the distribution of the estate between the two legitimate children had been done before a 2001 law came into force, which was why the provisions of that law relating to new inheritance rights of illegitimate children were not applicable to Mr. Fabris.Footnote 22 The Loi no. 2001-1135 relative aux droits du conjoint survivant et des enfants adultérins et modernisant diverses dispositions de droit successoral (2001 Law) implemented the Mazurek v France judgment, which declared that inequality of inheritance rights on grounds of birth was incompatible with the ECHR.Footnote 23 France accordingly amended the rules of inheritance by repealing all of the discriminatory provisions relating to children “born of adultery.” The 2001 Law stipulated that the provisions of that law were not applicable to inheritance arrangements that had already given rise to distribution before the law came into force.Footnote 24 According to the French government, it was not possible to undermine rights acquired by third parties — in this case by the other heirs — and that this justified restricting the retroactive effect of the 2001 Law to those successions that were already open on the date of its publication and had not given rise to division by that date.Footnote 25 However, the ECtHR held that the applicant had been deprived of a reserved portion of the estate and that he was placed in a different situation than that of the legitimate children regarding the inheritance of their mother’s estate, and that the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate.Footnote 26 The ECtHR stated that there was no objective and reasonable justification for the difference in treatment regarding the applicant.Footnote 27
This judgment raises concerns as the ECtHR required France to apply its judgment on inheritance law retroactively. This case challenges the state’s margin of appreciation and involves a clash between the general principle of legal certainty in legal relations and the ECtHR’s interpretation of the margin of appreciation of states in choosing the means by which to execute the ECtHR’s judgments. Although the ECtHR admitted that it is not, in principle, required to settle disputes of a purely private nature, it considered that the factual, non-retroactive interpretation of the law by the national court “appears unreasonable, arbitrary and blatantly inconsistent with the prohibition of discrimination.”Footnote 28 It basically held that the non-retroactive interpretation of national law by the national courts was in conflict with the ECHR.
By striving to prevent further violations similar to those found in the Mazurek judgment, did the ECtHR not catalyze another interference with the rights of the other private party who took up inheritance in good faith? It is evident that the ECtHR clearly favoured the seriousness of the discrimination against illegitimate children over the retroactive effects of the legislation and, thus, over legal certainty in concrete inheritance relationships. But is it not positive discrimination to find that the inheritance rights of the applicant bear more weight than the bona fide rights of legitimate children by unyieldingly insisting on the retroactive application of the 2001 Law? These considerations lead one to contemplate whether the ECtHR should not be less rigorous in exercising its supervision over decisions of national authorities that seek to balance the interests of private parties. Perhaps the ECtHR’s supervision should rather be stricter in “vertical” cases, involving disputes between the state and private persons, for such disputes always entail a certain imbalance of power to the benefit of the state that bears obligations to protect the rights of private persons.
PRINCIPLES OF INTERPRETATION OF THE CONVENTION
The ECtHR has long held that it must interpret and apply the ECHR in a manner that renders its rights practical and effective, not theoretical and illusory, and that the convention must also be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions.Footnote 29 Moreover, referring to the “living” nature of the ECHR, the ECtHR has reiterated that, with regard to changing conditions in the contracting states, it must interpret the convention in light of “present-day conditions” and respond to any emerging consensus as to the standards to be achieved.Footnote 30 In view of this, it seems that today the ECtHR’s jurisprudence has a tendency to enlarge and diffuse into many new areas of law that have little to do with fundamental rights and, thus, to overstep the role that was originally ascribed to it in the ECHR system. It seems that the object and purpose of the convention and the role of the ECtHR, which were accurately described by the British Judge Sir Gerald Fitzmaurice in his dissenting opinion in the Marckx case, have expanded over time.Footnote 31 This is due to the ECtHR’s “dynamic” interpretation of the ECHR as a “living instrument” that should be interpreted as being applicable to new spheres of law, such as social security, whereby the ECtHR, besides declaring its intent to maintain the effectiveness of the convention, has assumed the power to adjudicate on issues surpassing the sphere of fundamental rights.
That the scope of the ECtHR’s adjudicative function has increased to new areas can be illustrated, for example, by the judgment in Stec v United Kingdom, in which the ECtHR interpreted the right to the peaceful enjoyment of possessions as encompassing state-financed and non-contributory welfare benefits.Footnote 32 By virtue of this judgment, social support became “property” within the meaning of Article 1 of Protocol No. 1 to the ECHR,Footnote 33 which may have had a negative impact on the potential national welfare reforms pursued by the Council of Europe member states with a view to cutting welfare benefits.Footnote 34
The ECtHR considers evolutive interpretation necessary for maintaining the effectiveness of the ECHR. The former president of the ECtHR, Luzius Wildhaber, has noted that evolutive interpretation is fundamental to the effectiveness of the convention and the authority of the ECtHR, which must, in his opinion, seek to take change into account to be able to strike a balance between development and stability of the European standard of protection of human rights. In his opinion, this balance is conducive to the maintenance of the practical and effective nature of rights and to the implementation of the ECtHR’s judgments on the national level.Footnote 35 For this purpose, the ECtHR has taken account of norms of national and international law.Footnote 36 It refers to general international law, international treaties,Footnote 37 general principles of law recognized by civilized nations,Footnote 38 the principles laid down by texts of universal scope,Footnote 39 jus cogens,Footnote 40 and Council of Europe instruments.Footnote 41 To determine the meaning of the terms and phrases used in the ECHR, the ECtHR is guided mainly by the rules of interpretation provided for in Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT).Footnote 42 In accordance with the VCLT, the ECtHR is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn. It may also have recourse to supplementary means of interpretation, either to confirm a meaning determined in accordance with the above steps or to coin a meaning when the former would otherwise be ambiguous, obscure, or manifestly absurd or unreasonable.Footnote 43
It can be claimed that the rudimentary nature of the text of the ECHR requires that the ECtHR use evolutive interpretation, which, however, must not exceed the limits of the convention. But it can be observed that the most important jurisprudence of the ECtHR was delivered during the first three decades of its existence and has been constantly and frequently applied to present-day cases brought before the ECtHR. Even so, in view of changing social and economic circumstances, it is sometimes impossible to apply case law that is forty years old. A pregnant example is the evolving forms of property and economic relations. The nature of the text of the ECHR does not contribute much to understanding these evolving aspects of daily life and requires that the ECtHR use evolutive interpretation, and it is just this nature of the convention that allows such interpretation.
Evolutive interpretation provides the ECtHR with the flexibility necessary in the changing legal, social, and economic environment of Europe. Nonetheless, there are also critics of it who argue, for example, that it contradicts the consistency of the case law or the principle of legal certainty and predictability.Footnote 44 There is some truth to this argument. It is commonplace that evolutive interpretation is necessary to secure the effectiveness of the system of European human rights protection. On the other hand, its use entails changes in the case law and, thus, disturbs the predictability of the ECtHR’s judgments, especially when the ECtHR adjudicates in new areas of law that have little to do with fundamental rights. It has an impact on national legal orders of the Council of Europe member states, as the national authorities must take the case law into consideration, overreaching the ECHR’s original “mission” of preventing the recurrence of wars and tyranny. It is beyond doubt that evolutive interpretation improves the effectiveness of human rights protection at the expense of the predictability of the case law. It is therefore necessary to seek a balance, which the ECtHR strives for by having resort to the European consensus doctrine to mitigate the “surprise” effect of evolutive interpretation.Footnote 45
European consensus may constitute a relevant consideration for the ECtHR when interpreting the provisions of the ECHR in specific cases. The ECtHR has applied it in a number of cases. In regard to property, the case of Mazurek v France is illustrative. Footnote 46 In this case, Mazurek complained of an infringement of his right to respect for his family life, within the meaning of Article 8 of the ECHR, and of discrimination on account of his birth, within the meaning of Article 14, as well as of an infringement of his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No 1 to the convention. The ECtHR stated that the institution of the family was not rigidly codified, whether historically, sociologically, or legally. With regard to the situation in the other member states of the Council of Europe, it noted that there was a clear trend towards the abolition of discrimination in relation to adulterine children. It could not disregard such developments in its interpretation, which was necessarily evolutive, of the relevant provisions of the ECHR, and it found a violation of the right to peaceful enjoyment of property in conjunction with Article 14 of the convention.
The use of European consensus in the legal reasoning of the ECtHR places restrictions not only on the ECtHR’s evolutive interpretation but also, as observed earlier, on the margin of appreciation given to states. Some authors consider it to be a mediator between dynamic interpretation and the margin of appreciation.Footnote 47 The ECtHR itself has admitted that, being made up of a set of rules and principles that are accepted by the vast majority of states, the common international or domestic law standards of European states reflect a reality that it cannot disregard when it is called upon to clarify the scope of a ECHR provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty.Footnote 48
TOWARDS HARMONY WITH THE ECtHR
The influence of the ECtHR on national courts takes place primarily by way of the latter’s interpretation and application of the ECtHR’s case law. National courts strive to interpret national law in harmony with the ECtHR. They apply the ECtHR’s case law,Footnote 49 as they generally try to avoid possible conflictsFootnote 50 and desire to reduce exposure to adverse judgments.Footnote 51 In this regard, the former president of the ECtHR, Judge Dean Spielmann, observed that the level of jurisprudential dialogue seems to be constantly improving and that national courts seem to have been adopting more and more frequently the legal argumentation of the ECtHR in order to rationalize their own decisions.Footnote 52
On becoming states parties to the ECHR, the Council of Europe member states took upon themselves a commitment to take into account not only individual judgments that are binding on each of them but also the findings of the ECtHR in general.Footnote 53 As Constance Grewe appositely points out, the ECtHR’s function is “not only to determine specific issues and decide specific cases, it is also to state what the law is, to deliver an authentic interpretation of the Convention, to create a European standard of rights protection.”Footnote 54 The case law of the ECtHR generally serves to elucidate, safeguard, and develop the rules instituted by the ECHR, thereby contributing to the observance by states of the engagements undertaken by them as contracting parties.Footnote 55 The case law of the ECtHR, thus, has the effect of res interpretata that should be taken into account by national authorities in their application and interpretation of the ECtHR’s case law with a view to harmonizing human rights protection norms across the continent and promoting the rule of law for maintaining and furthering the achieved common standard in the protection of human rights.
This res interpretata effect of the judgments of the ECtHR will be strengthened by Protocol No 16 to the ECHR, which should contribute to the enhancement of the interaction between the ECtHR and national jurisdictions.Footnote 56 On the entry into force of this protocol, the highest national courts and tribunals will have the possibility of requesting the ECtHR to give non-binding advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the ECHR or the protocols thereto.Footnote 57 Protocol No 16, thus, envisages a new form of dialogue — an institutional dialogue — between the highest national courts and the Strasbourg court in the context of cases pending before these national courts, which will complement the jurisprudential interaction between the courts. Protocol No 16 may also be conducive to the strengthening of the subsidiary role of the Strasbourg court, as the advisory opinions may have the effect that cases pertaining to alleged violations of human rights will be settled more frequently at the national level.Footnote 58 It may also lead to a more consistent implementation of the ECHR across Europe, considering that the ECtHR is the final arbiter of the interpretation and application of the convention in all member states of the Council of Europe. These considerations lead to the following question. Can the ECtHR be perceived as the Constitutional Court of Europe?
THE EUROPEAN COURT OF HUMAN RIGHTS: THE CONSTITUTIONAL COURT OF EUROPE?
An answer in the affirmative may be tempting in view of the ECtHR’s standard-setting role in the area of human rights protection. The ECtHR has reiterated on many occasions that its mission is also to raise the general standards of protection of human rights and extend human rights jurisprudence throughout the community of states under the ECHR by determining issues on public policy grounds in the common interest.Footnote 59 But, although the ECtHR performs a standard-setting role in the area of human rights protection, this should not justify it being considered as the European constitutional court in the true sense of those words. Rather, its role consists in serving as a reference point in the area of human rights protection that comprises both the static aspect, represented by model norms of standard protection that are shared with the national legal systems, and the dynamic aspect, consisting of interactions with national courts within the limits of its competence given by the ECHR and its protocols.Footnote 60
There are some who believe that the ECtHR has attained a constitutional character and that it has thus become a European constitutional court.Footnote 61 The main arguments put forward by proponents of this idea are that the ECHR has been incorporated into the national law of most member states of the Council of Europe, that the case law of the ECtHR is often referred to by national courts as well as by the Court of Justice of the European Union (CJEU), or that the Lisbon Treaty commits the European Union (EU) to becoming a party to the ECHR.Footnote 62 It is true that some cases may have created the impression that the ECtHR has placed itself in the position of a supranational court. Examples include the Loizidou case in which it stated that the ECHR is “a constitutional instrument of European public order,”Footnote 63 or the Bosphorus case in which the ECtHR claimed that it, and not the CJEU, had the ultimate competence to determine whether EU regulations comply with the convention when applied by member states.Footnote 64 However, whatever impression these cases may have left, the ECtHR has, at the same time, acknowledged the limits imposed on its role. It has reiterated on many occassions that it is not a court of fourth instance, as its function is not to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the ECHR, and that it cannot assess the facts that have led a national court to adopt one decision rather than another.Footnote 65
Furthermore, the role of the ECtHR as a European constitutional court is not supported by historical facts. It is evident that the drafters of the ECHR did not envisage that the convention should serve as a constitution for Europe but, rather, as a bulwark against any revival of a totalitarian system of government.Footnote 66 If the ECtHR was to become a European constitutional court, it would follow that it would be competent to declare national laws “unconstitutional” in cases of a violation of the ECHR in all member states. But not all member states have incorporated the convention into their constitutional orders, and so there are still discrepancies in this regard. In some countries, such as Denmark, the ECHR only forms part of the ordinary law and can be disregarded if it would impugn the Constitution.Footnote 67 In other countries, the ECHR has been declared to form part of the constitutional order, such as in the Czech Republic,Footnote 68 or to hold a supra-legislative, but infra-constitutional, status, such as in France.Footnote 69
The ECtHR, instead of assuming the role of a supranational constitutional court, should rather adhere to the principle of subsidiarity and its role of supervisory jurisdiction. After all, this is the direction that it agreed to follow in the Brighton DeclarationFootnote 70 and which is presumed in Protocol No 15 to the ECHR. But the general impression that the ECtHR has been assuming the role of a supreme European human rights court is not surprising in view of the dynamic, or evolutive, interpretation of the ECHR it has adopted. The way national courts take into account and apply the interpretative practice of the ECtHR varies depending on the status of the ECHR within a particular legal order and each state’s system of constitutional protection of fundamental rights and freedoms. In this respect, different approaches can be illustrated by examining the examples of France and the Czech Republic — countries with different constitutional histories, different systems of constitutional justice, and different degrees of willingness on the part of the respective constitutional jurisdictions to implement and be influenced by the case law of the ECtHR.
French Approaches to Implementation of the ECHR and ECtHR Rulings
France has a dual judicial system — there are “judicial” (civil and criminal) courts and administrative courts. There are three supreme courts — the Council of State (Conseil d’État), the Court of Cassation (Cour de cassation), and the Constitutional Council (Conseil constitutionnel). The Council of State is the supreme administrative court. It hears appeals against some judgments of administrative tribunals, incuding disputes relating to municipal and cantonal elections. It also has jurisdiction over cases of special importance (for example, with respect to petitions seeking the cancellation of presidential decrees or ministerial acts). Furthermore, it advises the government on the preparation of bills, ordinances, and certain decrees and anwers the government’s queries on legal affairs. The Council of State does not have power formally to review legislation for conformity with the Constitution. If it finds legislation that may not be in conformity with the Constitution, it will refer the matter to the Constitutional Council.
The Court of Cassation is the highest court in the French judiciary. It does not judge on the facts but, rather, determines whether laws have been properly applied by the inferior courts. It is not a third level of jurisdiction as it does not rule on the merits of the individual case. Its most important role is the harmonization of the case law in the country. It also gives opinions on new and complex legal issues to other courts. Both the Council of State and the Court of Cassation may review laws and their application for their conformity with the ECHR — that is, they exercise an ex post control of the “conventionality” of laws.
Of the three supreme courts, it is only the Constitutional Council that is entitled to exercise judicial review of the constitutionality of legislation and international treaties and, to some extent, EU directives, whereby their compliance with the French Constitution is ensured. The Constitutional Council, however, does not stand at the top of the hierarchy of ordinary or administrative courts. It is separate from the “judicial” courts and the administrative courts. It deals with disputes over legislation and disputes over elections or referendums and provides advice to the government. It has the power to review legislation for its conformity with constitutional norms. It gives rulings on constitutionality ex ante (that is, it reviews statutes prior to their entry into force) and on preliminary questions of constitutionality (questions prioritaires de constitutionnalité). The latter may be referred to the Constitutional Council only if the reference is approved by the Council of State or by the Court of Cassation. The decisions of the Constitutional Council are binding on all courts, including the ordinary supreme courts — the Court of Cassation and the Council of State.
As to the relationship between the Constitutional Council and the ordinary supreme courts (the Court of Cassation and the Council of State), the latter submit preliminary questions of constitutionality to the Constitutional Council in cases of suspected violation of constitutional rights by a statute. Furthermore, the Constitutional Council influences the ordinary supreme courts by means of its case law, as its decisions are binding on all public authorities, including the courts. And, vice versa, the Constitutional Council is influenced by decisions of the ordinary supreme courts and by advisory opinions of the Council of State given in the process of legislative drafting. Another dimension of the indirect relationship between the Constitutional Council and the ordinary supreme courts can be found in respect of the review of conformity of laws with the ECHR, which is carried out by the latter courts. In so doing, they run the risk that their review might come into conflict with the Constitutional Council’s review of the conformity of laws with the Constitution. As we shall see later in this article, potential differences in the assessment of the conformity of laws with the ECHR, on the one hand, and with the Constitution, on the other hand, seem to be a point of friction in the relationship between the two supreme courts and the Constitutional Council.
STATUS OF THE CONVENTION WITHIN THE LEGAL ORDER OF FRANCE
Although France was one of the founding states of the Council of Europe to sign the ECHR on 4 November 1950, it only ratified the convention in 1974Footnote 71 and allowed individual petitions in 1981.Footnote 72 The delay in ratification was grounded in the government’s belief that ratification was unnecessary to secure fundamental rights and liberties that were already guaranteed in national law and that there was no need to become subject to supranational control in this area.Footnote 73 In regard to the hierarchy of international engagements and national law in France, the ECHR enjoys a supra-legislative, but infra-constitutional, status.Footnote 74 The French legal order is based on a monist view of the operation of international treaties in the national legal order.Footnote 75 Thus, international treaties acquire an authority superior to that of ordinary laws by virtue of their ratification and publication in the Official Journal.
The ECHR is not part of the rules of reference for the review of constitutionality — that is, constitutional norms (or the so-called “bloc of constitutionality”). The concept of the French “bloc of constitutionality” (bloc de constitutionnalité) refers to the totality of constitutional norms and principles that are taken into consideration in the framework of the review of the constitutionality of laws by the French Constitutional Council and that must be observed by the executive branch and by Parliament in the exercise of their respective powers. This concept includes not only the 1958 Constitution and its preamble but also, since 1971, the Declaration of the Rights of Man and of the Citizen,Footnote 76 the preamble of the 1946 Constitution,Footnote 77 and the 2004 Charter of the Environment, to which the preamble of the 1958 Constitution now refers. Furthermore, it also includes norms referred to by constitutional texts, such as the “fundamental principles recognized by the laws of the Republic” and “political, economic, and social principles”Footnote 78 to which the preamble of the 1946 Constitution refers.Footnote 79 In addition, this concept comprises the principles and objectives of constitutional value that, although not being explicitly referred to or enshrined in constitutional texts, are deduced by constitutional judges from these texts by interpretation. This notion of the Constitution in the “broad” sense has been denoted as the “bloc of constitutionality” in the scholarly literature.Footnote 80
There is no hierarchy of constitutional norms forming part of the bloc of constitutionality. Thus, for example, the 1958 Constitution is not superior to the Declaration of the Rights of Man and of the Citizen and vice versa. Nor does the rule lex posterior derogat legi priori apply. The notion of the bloc of constitutionality has enabled the Constitutional Council to exercise strict control over legislation on the basis of a large number of constitutional principles. The Constitution does not imply that the Constitutional Council should assure the principle of superiority of duly ratified or approved international treaties over statutes in the framework of constitutional review.Footnote 81 Since 1975, the Council has held that despite the principle of precedence of international treaties over statutes by virtue of Article 55 of the Constitution, it is not competent to examine the conformity of statutes with the ECHR.Footnote 82
In its subsequent decisions, the Council explicitly stated that if review of the superiority of international treaties over statutes could not be exercised within the framework of constitutional review, it must be exercised by ordinary jurisdictions.Footnote 83 Thus, the precedence of the ECHR over national legislation and the effective application of Article 55 of the Constitution are ensured, after some period of hesitation, by the Council of State and the Court of Cassation. In other words, the Council of State and the Court of Cassation review laws for compliance with the ECHR (contrôle de conventionnalité), while the Constitutional Council alone reviews the constitutionality of laws (contrôle de constitutionnalité). Review for conformity with the ECHR by the former courts “operates as a functional substitute for rights protection under the Constitution.”Footnote 84 If the Court of Cassation responded to this invitation rather promptly in a decision of 24 May 1975,Footnote 85 the Council of State took almost fifteen years to accept the supremacy of a treaty over a subsequently enacted statute.Footnote 86
Accordingly, the conformity of national law with the ECHR is not assured by means of constitutional review but, rather, by means of review of treaty conformity exercised by ordinary courts that apply the international fundamental rights standards directly. The Constitutional Council reviews only the conformity of laws with the Constitution, and international norms are not norms of reference in this regard. Disregarding the issue of the conformity of legislation with the ECHR in the review of constitutionality, the Council has ruled that “a statute that is inconsistent with a treaty is not ipso facto unconstitutional.”Footnote 87
RELEVANCE OF THE ECHR AND THE CASE LAW OF THE ECtHR IN THE PRACTICE OF THE FRENCH CONSTITUTIONAL COUNCIL
Although the Constitutional Council does not take into account the ECHR as a norm of reference, it gives it great weight as a source of inspiration for interpreting constitutional norms.Footnote 88 The ECHR is an instrument for interpreting the Constitution and for ensuring convergence between national constitutional law and European human rights law. The influence of the ECHR and the ECtHR on the jurisprudence of the Constitutional Council is purely intellectual; it involves the persuasive authority of the jurisprudence of the ECtHR and the inspiration that the Council draws from a catalogue of rights that is more recent than the 1789 Declaration of the Rights of Man and of the Citizen.Footnote 89
The dialogue between the Constitutional Council and the ECtHR can be described as a spontaneous dialogue that has been effectuated mostly by the Council implicitly taking into consideration the ECtHR’s case law.Footnote 90 This encounter has permitted the latter to enrich the concept of principles and objectives of constitutional value, which can be illustrated in the example of the principle of pluralism. While the French Constitution is silent on this notion, the Constitutional Council, having been inspired by European human rights jurisprudence,Footnote 91 has stated that respect for socio-cultural streams of expression was an objective of constitutional value and one of the conditions of democracyFootnote 92 and that freedom of expression was the turning point in the building of a democratic society.Footnote 93 The Council has also considered that the guarantees provided for by Article 8 of the ECHR could be applied as constitutional principles, in connection with the imposition of administrative sanctions, including in the area of taxation.Footnote 94 This concomitance can also be observed with respect to the rights of the defence, where the Council considered that defence rights were a fundamental principle recognized by the laws of the republic.Footnote 95
The Constitutional Council has also drawn inspiration concerning the emergence of new rights, including the right to respect for private life or the freedom to marry, which constitute, according to the Council, personal liberties guaranteed by Articles 2 and 4 of the Declaration of the Rights of Man and of the Citizen;Footnote 96 the principle of human dignity, which the Council deduced from the preamble to the 1946 Constitution;Footnote 97 and the notion of pluralism of thought and opinion.Footnote 98 Although the ECHR does not form part of the norms of reference for constitutional review, some authors have observed that, despite the persistent refusal of the Council to quote European case law, the standard of protection rendered in the constitutional jurisprudence is largely equivalent to the European oneFootnote 99 or in complete conformity with the jurisprudence of the ECtHR.Footnote 100 In some instances. the ECtHR’s findings correspond to those delivered by the Council.Footnote 101 In any event, if the Constitutional Council aspires to guarantee the unity of the legal system and legal certainty, it is desirable that it closely take into consideration the jurisprudence of the ECtHR.Footnote 102
Although the Constitutional Council does not, as a matter of principle, expressly refer to judgments of the ECtHR,Footnote 103 it has done so exceptionally in the decision of 19 November 2004 concerning the Treaty Establishing the Constitution for Europe, in which it referred to the judgment of the ECtHR in the case of Leyla Sahin v Turkey with a view to preserving certain values of the republic.Footnote 104 With respect to the recent jurisprudence of the Council, the influence of the ECtHR on the amendment of legislation can be perceived in various fields of law. To cite an example, the declaration of non-conformity with the Constitution of legislative provisions on police detention (garde à vue)Footnote 105 was followed by reform of the legislation.Footnote 106 In procedural issues, the Council has had to recognize the right to an effective legal remedy within the meaning of Article 6 of the ECHR Footnote 107 and that respect for the rights of the defence implies the existence of a just and equitable process and the related necessity of the equality of arms of the parties.Footnote 108
It should not be omitted that the judgments of the ECtHR finding a violation also have an impact on the reopening of judicial proceedings in criminal matters. The French Code of Criminal Procedure Footnote 109 allows for the reopening of cases at the request of the minister of justice, the advocate-general of the Court of Cassation, or the person convicted, but only for a finding of guilt rendered by a court dealing with the substance of the caseFootnote 110 or by the Court of Cassation.Footnote 111 According to the latter, a condition is that the relationship between the violation and the condemnation must stem from an ECtHR decision.Footnote 112 The case law of the ECtHR, however, has not induced a reopening in civil and administrative law matters.
However, since the Constitutional Council has decided to disregard the ECHR in the process of constitutional review, why does it have recourse to it in the interpretation of constitutional norms? This may be explained by its quest for safeguarding legal certainty in the legal order, given that the other supreme courts — the Council of State and the Court of Cassation — are bound to conform to the jurisprudence of the Strasbourg court to avoid being condemned for a violation of the ECHR.Footnote 113 The more so with regard to the fact that the ECHR is an ever-evolving “living instrument” that is dynamically interpreted by the ECtHR to keep up with the changing social and economic environment in the states parties to the convention.Footnote 114 Consequently, the Council cannot afford to lag behind the ECtHR’s evolving case law in order, first, to preserve coherence in the decision-making of the supreme courts and, second, to avoid that France be sanctioned by the Strasbourg court for potential violations of the ECHR.
But is inspiration by the ECHR and the ECtHR’s case law for the purpose of interpretating constitutional norms sufficient to prevent potential conflicts between the findings of the Constitutional Council, on the one hand, and those of the ECtHR and the ordinary supreme courts, on the other hand, and to safeguard the related legal certainty? This leads to an analysis of the problems connected with the absence of review for conformity with the ECHR.
PROBLEMS ATTACHED TO THE ABSENCE OF REVIEW FOR CONFORMITY WITH THE ECHR BY THE FRENCH CONSTITUTIONAL COUNCIL
A question arises as to whether the implementation of the ECHR as a “living instrument” is effective when the Constitutional Council does not review legislation for conformity with the convention. The question of effectiveness of the implementation of the convention’s case law, disregarding the normative text thereof, in view of the fact that it protects rights and freedoms that are basically identical to those protected under the French Constitution, may also arise due to the duality of review and due to the fact that the Constitutional Council does not exercise the power to strike down laws that are in conflict with the ECHR, whereby it could directly eliminate, as well as prevent, possible interferences with the convention. What are the consequences, then, of the Council’s refusal to deal with the issue of conformity of statutes with the convention?
The consequences are twofold. First, they encompass a potential clash between the decisions of the Constitutional Council and the ECtHR. From the fact that the Constitutional Council does not apply the ECHR directly to strike down laws that are incompatible with it, a situation may arise where the Council rules on compatibility of national law with the Constitution, while the ECtHR comes to a contrary conclusion and finds a violation of the convention. Romain Tinière notes in this regard that the existing principal dissimilarities between constitutional review and external review for conformity with the ECHR exercised by the ECtHR can be linked to the different tasks that these two jurisdictions are entrusted with, implying that the Constitutional Council is primarily a constitutional judge rather than a human rights judge.Footnote 115 Second, they cover situations of a potential clash between decisions of the Constitutional Council and ordinary courts exercising the power of review of conformity with the ECHR — that is, situations where the Council’s decision on constitutionality conflicts with a decision of the ordinary courts on conformity with the convention as well as situations of a potential normative conflict between national law, as such, and the convention.
The first situation can be illustrated in a case of “legislative validations,” in which the Constitutional Council was made to modify its jurisprudence concerning a situation where the ECtHR declared a statutory provision that had been held constitutional by the Council contrary to the convention.Footnote 116 In Decision No. 93–332 of 13 January 1994, the Council ruled on the conformity of Article 85 of the Act of 18 January 1994 with the Constitution. The provision at issue validated the amount of the so-called special difficulties allowance introduced in 1953 for staff of the social security bodies administering the general social security scheme and their dependent institutions in the departments of Alsace-Moselle. The ECtHR, however, referring to its established case law, ruled in the case of Zielinski, Pradal, Gonzales and others v France that Article 85 was contrary to Article 6, paragraph 1 of the ECHR.Footnote 117 It stated that the principle of the rule of law and the notion of a fair trial enshrined in Article 6 precluded any interference by the legislature — other than on compelling grounds of the general interest — with the administration of justice designed to influence the judicial determination of a dispute. According to the ECtHR, Article 85 expressly excluded from its scope those court decisions that had become final on the merits and that settled, once and for all and retrospectively, the terms of the dispute before the ordinary courts. The ECtHR considered that the Constitutional Council’s decision did not suffice to establish that Article 85 of the Act of 18 January 1994 was in conformity with the ECHR. Subsequently, the Constitutional Council rendered a decision in which it adapted its jurisprudence to accord with that of the ECtHR.Footnote 118 It explicitly relied on the principle of the separation of powers in the exercise of the review of proportionality between general interest and interference with the right to recourse. Since then, in regard to legislative validations, the Council exhibits greater vigilance in the appreciation of sufficiency of the general interest in timeFootnote 119 and space.Footnote 120
This evolution shows that originally the jurisprudence of the Constitutional Council was less demanding than that of the ECtHR. One can also perceive that the jurisprudence of the Council and the ECtHR on the protection of fundamental rights and freedoms is largely congruent and that the Constitutional Council and the ECtHR, in fact, protect the same rights.Footnote 121 Even so, the fact that they protect the same rights does not acquit the Council of the obligation to maintain the standard degree of protection set up by the ECHR and its case law.
In regard to the second situation involving a potential conflict of national norms with the ECHR, the ordinary courts do not hesitate to resolve it in favour of the latter. The Council of StateFootnote 122 and the Court of CassationFootnote 123 consider that Article 55 of the Constitution provides for the precedence of international law over domestic law, although not over the Constitution. Both of these courts may refuse to apply national legislation in order to ensure the primacy of international instruments. They do not hesitate to refer to the provisions of the ECHR in their judicial review. For example, the Council of State has applied Article 8 of the ECHR with respect to the law of aliens,Footnote 124 and it has referred to Article 6 of the ECHR when ruling on the state’s liability in a case of conflicting national law.Footnote 125 However, it was reluctant to recognize the application of Article 6 of the convention in the field of administrative procedure by ruling that an administrative authority could not be considered a tribunal within the meaning of Article 6 of the convention.Footnote 126
Thus, given the absence of review of conformity with the ECHR by the Constitutional Council, when a law is not in conformity with the convention, though it is in conformity with the Constitution, a judge is obliged to refrain from its application. Only an indirect remedy to such a drawback provides a constitutional reform introducing an ex post review of the constitutionality of statutes, as we will see in the next section.Footnote 127
CONSEQUENCES OF AN EX POST REVIEW OF CONSTITUTIONALITY
At present, the Constitutional Council performs two forms of constitutional adjudication. First, since 1975, it has exercised a constitutional review function that is both ex ante, in the framework of which statutes may be referred to the Council before their promulgation, and, if found unconstitutional, do not enter into force; and abstract, since statutes can be referred to the Council only by political authorities.Footnote 128 The Council, thus, engages in prior review of the constitutionality of laws.Footnote 129 This type of review is in place since the founders of the 1958 Constitution designed the Constitutional Council as a means of securing executive dominance over Parliament and not to protect fundamental rights, as some claim.Footnote 130 Second, since 2010, the Constitutional Council has exercised a new form of constitutional review that is ex post, as it concerns statutes already enacted and concrete, since a person to whom a statute is being applied has the possibility of making “an application for a priority preliminary ruling on the issue of constitutionality” of the statute (question prioritaire de constitutionnalité (QPC)). The QPC does not provide for the lodging of a constitutional complaint directly before the Constitutional Council; it “only gives the exclusive right to have one’s case examined for an eventual transmission”Footnote 131 by the Council of State or the Court of Cassation.Footnote 132
Although the QPC does not change anything regarding the role of the ECHR in constitutional review or its subordinate position to the Constitution in the French legal order, it, nevertheless, affords an indirect remedy to the absence of review for conformity with the convention by the Constitutional Council. The indirect remedy consists in the power of the Constitutional Council to abrogate a challenged statute or its provision which the Council finds unconstitutional,Footnote 133 and, hence, to prevent possible inconsistencies of a national law with the ECHR (which could possibly give rise to an adverse ruling by the ECtHR); and, further, in the new competence of the Council of State and the Court of Cassation to refer QPCs to the Constitutional Council. It is no longer necessary to undergo review of the conformity of the law with the ECHR in order to set aside a statute incompatible with the Constitution. By abrogating laws that are incompatible with the Constitution, the Council prevents possible present or future discrepancies between national law and the ECHR and, hence, potential future rulings of the ECtHR on a violation of the convention, which renders the interaction between these two institutions more effective. The question of validity of a contested statutory provision or a statute will not be subjected to a new proceeding on appeal, cassation, or before the ECtHR, notwithstanding whether the contested statute was declared to be in conformity with the ECHR by the Council of State or the Court of Cassation.Footnote 134 Moreover, the introduction of the QPC has brought about a new dimension in relations between the ECtHR and the Constitutional Council. It has opened up the possibility of scrutinizing the Council’s decisions in light of the exigencies of Article 6 of the ECHR (the fair trial guarantee). Previously, this provision did not apply to the practice of the Constitutional Council since Article 6 of the ECHR does not apply to ex ante or abstract constitutional review, as there was no civil litigation or parties.Footnote 135
The QPC, however, does not respond to the potential for jurisprudential conflicts between the Constitutional Council, on the one hand, and the ordinary supreme courts and the ECtHR, on the other, with respect to the compatibility of national law with the ECHR. If the Constitutional Council holds that the contested law is constitutional, it will continue to exist in the national legal order. The ordinary supreme courts will have to apply it, unless they find it incompatible with a provision of an international treaty or the law of the EU.Footnote 136 Thus, although the ordinary supreme courts have become subsidiary judges of the constitutionality of laws by exercising their role as a “filter” for QPCs, they continue to be the judges of conformity with the ECHR, without, however, the power to repeal a statute due to its incompatibility with the convention. The ordinary supreme courts seem to continue to be caught in a vice between the Constitutional Council, on the one hand, and the ECtHR, on the other. In this dilemmatic situation, they do not hesitate to diverge from the Constitutional Council, displaying their autonomy, as illustrated by a case pertaining to the presence of counsel during police detention (garde à vue).
In this case, the Constitutional Council entered into conflict with an interpretation of the ECtHR. The Constitutional Council ruled that the legal regime of police detention, in regard to the limitation of the presence of counsel with respect to certain criminal offences, had already been held to be in conformity with the Constitution,Footnote 137 while finding other contested provisions of the Code of Criminal Procedure unconstitutional.Footnote 138 The case law of the ECtHR, on the contrary, requires the presence of counsel during detention, save for exceptions justified by particularly pressing reasons and not depending on the nature of the crime in question.Footnote 139 The Constitutional Council ruled that the challenged provisions found to be unconstitutional would remain in effect until 1 July 2011, after a new law was to be adopted, thereby suspending the effect of the declaration of unconstitutionality to that date.Footnote 140 The criminal chamber of the Court of Cassation, undertaking the review of conformity of the same provisions of the Code of Criminal Procedure with the ECHR, upheld the conclusion of the Constitutional Council to suspend the effects of non-conformity with the ECHR until the legal regime of police detention was modified by law on 1 July 2011 at the latest.Footnote 141
A few days before the Court of Cassation rendered its decision, the ECtHR delivered a judgment condemning France for the practice that had been challenged before the Constitutional Council and the Court of Cassation.Footnote 142 The plenary assembly of the Court of Cassation, taking into account the condemning judgment of the ECtHR, refused to follow the decision of the criminal chamber below and ruled on 15 April 2011 in favour of the immediate application of the ECHR with a view to preventing the risk of systematic condemnations of France by the ECtHR in future.Footnote 143 The Court of Cassation, thus, largely neutralized the postponed effect of the declaration of unconstitutionality by giving immediate effect to the declaration of non-conformity with the convention and, in so doing, interfered with the authority of the Council’s decision that is binding on all national jurisdictions.
This case demonstrates that constitutional review and the review of conformity of laws with the ECHR have not ceased to interfere with one another, despite the introduction of the QPC, which purported to mitigate these interferences. In this context, Sébastien Platon notes that this practice may lead the applicants to develop a “more beneficial litigious strategy” by having recourse to the ordinary courts with a claim of non-conformity of a law with the ECHR to obtain the law’s immediate inapplicability, even where the constitutional court has decided to suspend abrogation of the law that it has found to be in conflict with a fundamental right or liberty.Footnote 144 In any event, the decision of the ordinary judges does not have the same effect as that of the Constitutional Council, as the former entails only the relative inapplicability of legislative provisions found not to be in conformity with the ECHR.
It can be claimed that the QPC preserves the pre-existing isolation of constitutional review from the international context. The consequences that arise therefrom only confirm what has already been discussed — that is, the potential for clashes in the courts’ findings and the resulting weakening of legal certainty as well as a constitutional “autonomy” that is disconnected from the European context and, thus, excluded from dialogue with ECtHR judges. Potential conflicts would be prevented if the Constitutional Council reviewed laws both for constitutionality and conformity with the ECHR. This would also lead to a more coherent interpretation and application of the norms and jurisprudence of the ECHR at the national level and to a closer synergy between the Constitutional Council and the ECtHR. Yet, review of laws for conformity with the ECHR by the Council would be “toothless” if the latter did not have the power to render normative provisions inoperative due to their conflict with the convention. This would require that, in the hierarchy of norms, the ECHR be endowed with the same legal force as the Constitution, such as has been established by the Czech Constitutional Court.
Czech Approaches to Implementation of the ECHR and ECtHR Rulings
STATUS OF THE CONVENTION WITHIN THE LEGAL ORDER OF THE CZECH REPUBLIC
In regard to the position of international treaties in the Czech legal order, until the entry into force of the so-called Euro-amendment of the Constitution on 1 June 2002,Footnote 145 international human rights treaties, including the ECHR, were directly applicable and took precedence over national law.Footnote 146 The Euro-amendment abolished this special category of human rights treaties by amending Articles 10 and 87, paragraph 1(a) and (b) of the Constitution,Footnote 147 which referred to these treaties as norms of reference for the review of the constitutionality of laws by the Constitutional Court. The new wording of Article 10 of the Constitution introduced an incorporation clause relating to all international treaties, including human rights treaties.Footnote 148 A grammatical interpretation of Article 10 would lead one to think that it is the ordinary courts that are competent to review laws for compatibility with international treaties and that are entitled to give priority of application to an international treaty in case of conflict. The Czech Constitutional Court, however, has refuted any considerations to this effect. Shortly after the promulgation of the Euro-amendment, it rendered a judgment in which it held that “no amendment to the Constitution can be interpreted to the intent that it would lead to a limitation of the already achieved level of procedural protection of fundamental rights and freedoms.”Footnote 149 It further stressed that the ratified and promulgated international human rights treaties formed part of the constitutional order of the Czech Republic and that the incorporation clause could not be interpreted to mean that these international treaties would cease to be norms of reference in the review of the constitutionality of domestic laws by the Constitutional Court.
Accordingly, although it appears from Article 10 of the Czech Constitution that promulgated and ratified international treaties are of supra-legislative value and have priority of application over conflicting statutes, the Constitutional Court has interpreted this provision in such a way that international human rights treaties form part of the constitutional order and are norms of reference in the review of the constitutionality of laws. The Constitutional Court, thus, adopted an expansive interpretation of the constitutional order under Article 112, paragraph 1, of the Constitution, whereby it argued that the scope of the notion of the constitutional order cannot be interpreted only in light of Article 112, paragraph 1, of the Constitution but must also take account of Article 1, paragraph 2, according to which the Czech Republic honours its obligations under international law. This decision was largely criticized in the scholarly literature as judicial activism encroaching on legislative power and as an impermissible overstepping of the competences of the court in enlarging the scope of Article 112, paragraph 1, of the Constitution.Footnote 150 Even so, the Constitutional Court reiterated its stance in its subsequent case law.Footnote 151
It follows from the jurisprudence of the Constitutional Court that the ECHR has been “constitutionalized” to form part of the norms of reference for the review of constitutionality and part of the Czech constitutional order. As a consequence, any conflict with the ECHR on the part of national authorities entails a conflict with the Czech Constitution. The Constitutional Court may then avail itself of its competence to strike down the conflicting statute or other legal regulation or a conflicting individual decision of a public authority.
RELEVANCE OF THE ECHR AND THE CASE LAW OF THE ECtHR IN THE PRACTICE OF THE CZECH CONSTITUTIONAL COURT
With respect to the approach of the Constitutional Court towards final judgments of the ECtHR, one of the former judges of the Constitutional Court, in his report at a seminar of the Venice Commission on “The Value of Precedents (National, Foreign, International) for Constitutional Courts,” observed: “The case law of the Czech Constitutional Court generally reflects that of the European Court of Human Rights. There are no great differences between them, nor is there any noncritical application.”Footnote 152 The Constitutional Court itself has described its stance vis-à-vis the case law of the ECtHR as follows: “The Constitutional Court does not cast any doubt on the content of a binding judgment of the European Court in the cases against the Czech Republic representing a commitment of the Czech Republic which follows from international law. The Czech Republic is obliged to abide by such commitments not only under international law, but also under Article 1 para. 2Footnote 153 of the Constitution.”Footnote 154 Thus, apart from the international commitment undertaken in the ECHR, the obligation to abide by judgments of the ECtHR and to implement them flows directly from the Czech Constitution. The Constitutional Court draws its competence for implementing the ECtHR’s case law from Article 87, paragraph 1(i), of the Constitution, pursuant to which it “shall rule on measures essential for the implementation of a ruling by an international court, which is binding for the Czech Republic, unless it can be implemented in a different manner.”
The Constitutional Court has also expressed itself on the importance of interpretation of the ECHR by the ECtHR for national authorities. It has considered that the relevance of the ECtHR’s judgments reaches “constitutional quality” in Czech law and that “public authorities have a general duty to take into account the interpretation of the European Convention by the European Court in the cases brought before the Court against the Czech Republic, as well as in those concerning other member states of the Convention if the nature of the latter also makes them important for the interpretation of the Convention in the Czech context.”Footnote 155 The Constitutional Court takes into account the case law of the ECtHR and quotes it on a regular basis. Since the ECHR was declared by the Constitutional Court to form part of the constitutional order — or the Constitution, in the larger sense — the Constitutional Court has also referred to it when striking down parts of statutes or statutory provisions for their incompatibility with the ECHR. Since the ECHR is directly applicable, the ECtHR has directly applied its provisions, for example, to deal with the issue of the state’s responsibility for compensation of immaterial injury incurred as a result of the illegal deprivation of personal liberty,Footnote 156 the issue of squeeze-outs,Footnote 157 or the long-term inactivity of Parliament in regard to the adoption of legislation regulating unilateral augmentation of rents and other matters related to rents.Footnote 158 With respect to ordinary courts, it can be claimed that, in comparison with the 1990s when the Constitutional Court was, to a certain extent in relation to the ordinary courts, a pioneer in the application of constitutional norms, the situation has changed in that these courts also regularly refer to the provisions of the ECHR and use the European case law in their argumentation.Footnote 159
Among the judgments of the ECtHR finding a violation of the ECHR which have had an impact on the amendment of the domestic legislation can be adduced, for example, the case of Rashed,Footnote 160 which induced amendment of the Act on Asylum;Footnote 161 the case of Macready,Footnote 162 which brought about an amendment to the Act on Courts and Justices Footnote 163 introducing a motion for the setting of time limits for procedural actions as a preventive measure against delays in judicial proceedings; or the case of Hartman,Footnote 164 which induced in 2006 the adoption of a law providing for compensation for immaterial injury.Footnote 165
In regard to the issue of the reopening of proceedings following judgments of the ECtHR that find a violation, a reopening of proceedings before the Constitutional Court is possible in both criminal and civil matters. Pursuant to Article 119 of the Act on the Constitutional Court,Footnote 166 if the Constitutional Court renders a decision in a matter in which an international court later finds that a human right or fundamental freedom has been infringed contrary to an international treaty, a petition for reopening may be submitted against such a decision of the Constitutional Court, subject to conditions set down in that statute. The institution of the reopening of proceedings in criminal matters before the Constitutional Court was introduced in 2004 by an amendment to the Constitutional Court Act Footnote 167 in reaction to the judgment of the ECtHR in the case of Krčmář and Others. Footnote 168 As of 1 January 2013, it is also possible to reopen proceedings before the Constitutional Court in civil matters by virtue of an amendment to the Constitutional Court Act in 2012.Footnote 169
Conclusion
The dialogue between the national supreme courts and the ECtHR is conducive to the attainment of greater effectiveness in the protection of fundamental rights and freedoms by way of the harmonization of their interpretation and application. The interaction between the ECtHR and national courts is based on the principle of subsidiarity that allows national courts a wide margin of appreciation. The relationship between the ECtHR and national courts can be described as a balancing of power. Both the national and European courts have tools of their own enabling them to exercise their sphere of power vis-à-vis one another. While the ECtHR has the power to restrict the margin of appreciation of states by way of application of the European consensus doctrine or by specifying the measures that need to be adopted so that the legislation is rendered to conform with the ECHR, national courts dispose of great discretion with regard to the determination of the public interest justifying restrictions of the rights guaranteed by the ECHR. The use of European consensus in the legal reasoning of the ECtHR places restrictions not only on the margin of appreciation given to states but also on the ECtHR’s evolutive interpretation of the convention. The fact that the ECtHR has interpreted the ECHR progressively in the light of the “living instrument” doctrine should not be perceived as the former having assumed the status of a supreme European human rights court. The principle of subsidiarity remains the major principle of interaction between the ECtHR and national courts, which was confirmed by the recent adoption of Protocol No. 15 to the ECHR.
The extent to which national constitutional courts implement the case law of the ECtHR varies depending on the status of the ECHR within the particular legal order, that order’s system of constitutional protection of fundamental rights and freedoms, and the judges’ will to apply the ECHR. Pursuant to national legal texts in both France and the Czech Republic, international human rights treaties enjoy supra-legislative force but are inferior to the Constitution. The Czech Constitutional Court, however, considers these treaties as forming part of the constitutional order and, therefore, treats them as being superior to ordinary laws. Due to the constitutional value of the ECHR accorded by the Czech Constitutional Court, the latter takes the convention as a norm of reference in judicial review of constitutionality and applies it directly in its decision-making, which means that it can strike down legislation and decisions of ordinary courts that are contrary to the convention. The implementation of the case law of the ECtHR in the Czech Republic, thus, is rather intensive.
However, this is not the case with the French Constitutional Council. Since it refuses to review laws for their compatibility with the ECHR, it seems not to be directly influenced by the letter of and practice under the convention. This situation may give rise to potential conflicts with the ECtHR. The French Constitutional Council has not accorded, unlike the Czech Constitutional Court, constitutional status to the ECHR. The resulting duality of review, for both constitutionality and conformity with the ECHR, and the fact that the Constitutional Council does not exercise the power to strike down laws that are in conflict with the ECHR, whereby it could eliminate, as well as prevent, possible interferences with the convention, runs the risk of potential clashes between the findings of the Constitutional Council, on the one hand, and those of the ECtHR and the French ordinary courts that review for compatibility with the convention, on the other hand.
These potential clashes involve situations where the Constitutional Council rules on the compatibility of national law with the Constitution, and the ECtHR finds that the same national law violates the ECHR, as well as situations where findings on the constitutionality and compatibility of laws with the convention do not coincide, and legislation that contravenes the ECHR remains part of the legal order. A recent constitutional reform introducing the mechanism of a priority question of constitutionality does not clear away this potential for conflict. Potential differences in the assessment of constitutionality and conformity of laws with the ECHR seem to be a point of friction in the relationship between the courts that review for conformity with the ECHR and the Constitutional Council, and a finding of a violation of the ECHR by the ECtHR may potentially lead an ordinary judge to interfere with the authority of the Constitutional Council.
There seems to be a dialogue, however, between the ECtHR and the French supreme courts reviewing for conformity with the ECHR, which performs the task of harmonizing national law with the convention and the case law of the ECtHR. Moreover, as a consequence of the introduction of the priority question of constitutionality, these courts have become de facto and de jure constitutional judges. The ECtHR undoubtedly has helped to improve human rights guarantees through domestic case law. In this regard, it can be said that there has been a Europeanization of protection as the law of the ECHR is integrated in the decision-making of French courts, including the Constitutional Council, and their Czech counterparts. But it is obvious that the effectiveness of the implementation of the norms and the case law of the ECHR at the national level would be enhanced if the convention were incorporated into the constitutional norms and principles that are taken into consideration in the framework of constitutional review of laws by the French Constitutional Council (bloc of constitutionality) and, thereby, obtained constitutional force. Constitutional review and the role of the French Constitutional Council, thus, would be reinforced to the level of the Czech Constitutional Court.
