Judicial Tactics in the European Court of Human Rights

32 Pages Posted: 30 Jul 2011 Last revised: 2 Sep 2015

See all articles by Shai Dothan

Shai Dothan

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: August 9, 2011

Abstract

The European Court of Human Rights (ECHR) has been criticized for issuing harsher judgments against developing states than it does against the states of Western Europe. It has also been seen by some observers as issuing increasingly demanding judgments. This paper develops a theory of judicial decision-making that accounts for these trends. In order to obtain higher compliance rates with the judgments that promote its preferences, the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgments, and loses reputation every time a state fails to comply with its judgments. Not every act of compliance has the same effect on the reputation of the court, however. When the judgment is costlier, the court will gain more reputation in the case of compliance. In an effort to build its reputation, in some cases the court will issue the costliest judgment with which it expects the state to comply. Since the ECHR receives high compliance rates, its reputation increases, which leads it to issue costlier judgments. The court restrains itself when facing high-reputation states that can severely damage its reputation by noncompliance or criticism, so it demands more from low-reputation states.

Keywords: ECHR, European Court of Human Rights, Judicial Behavior

Suggested Citation

Dothan, Shai, Judicial Tactics in the European Court of Human Rights (August 9, 2011). Chicago Journal of International Law, Vol. 12, No. 1, p. 115, 2011; U of Chicago, Public Law Working Paper No. 358. Available at SSRN: https://ssrn.com/abstract=1898818

Shai Dothan (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

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