Kanstantsin Dzehtsiarou

Informed Decision-Making: The Comparative Endeavours of the Strasbourg Court

The article explores the use of comparative surveys in judgments of the European Court of Human Rights (ECtHR). It argues that the inclusion of a comparative survey serves an informational purpose that may increase the substantive legitimacy of ECtHR rulings. The article aims to provide a broad, however preliminary account of the use of comparative data by focusing on a number of pertinent doctrinal, methodological, and practical issues.

MISSION IMPOSSIBLE? ADDRESSING NON-EXECUTION THROUGH INFRINGEMENT PROCEEDINGS IN THE EUROPEAN COURT OF HUMAN RIGHTS

Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.

II. GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS, A, B & C v IRELAND , DECISION OF 17 DECEMBER 2010

The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure. 1 On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour. 2 It is also claimed that European consensus is overly subjective in its nature 3 and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning. 4 On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the methods potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order. 5 This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right. 6