Functional Disobedience, National Courts and the ECtHR

Abstract

This work explores the concept of functional disobedience. Functional disobedience is a consequence of the success of the ECHR and of the progressive involvement of national judges in the life and enforcement of this instrument. Concerning the structure of this work, first I shall introduce three points that will serve as guidelines to read these complex phenomena. Second, I shall try to show how national (especially Constitutional and Supreme) courts disobey, by mainly focusing on two jurisdictions (Italy and United Kingdom) but also other experiences (Austria and Germany for instance) will sometimes be recalled. Finally, I shall try to show some examples of change in the case law of the ECtHR that have been induced by national judges.

Keywords: Functional Disobedience, ECHR, National Courts