Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments

Sydney Law School Research Paper No. 08/135

EUI Working Papers LAW No. 2008/33

49 Pages Posted: 5 Nov 2008 Last revised: 19 Jan 2014

Wojciech Sadurski

The University of Sydney Law School

Date Written: November 4, 2008

Abstract

The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Member States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe were "like-minded" and the Convention system did not represent a challenge to their internal apparatus of human rights protection. This paper, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction of it being merely a sort of super-appellate court which scrutinizes individual decisions rather than laws in Member States. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Member States, while also facilitated by collaboration between the European Court and national constitutional courts. The emergence of so-called "pilot judgments" is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively "pierces the veil of the State", and positions the European Court as a quasi-constitutional judicial body at a pan-European level.

Keywords: European Court of Human Rights, European Convention for Human Rights, constitutional courts, Central and Eastern Europe, constitutionalism, judicial review

JEL Classification: K10, K30, K33, K40

Suggested Citation

Sadurski, Wojciech, Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments (November 4, 2008). Sydney Law School Research Paper No. 08/135; EUI Working Papers LAW No. 2008/33 . Available at SSRN: https://ssrn.com/abstract=1295652 or http://dx.doi.org/10.2139/ssrn.1295652

Wojciech Sadurski (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Paper statistics

Downloads
459
Rank
49,195
Abstract Views
1,494