A German civil servant using a false name? No sweat, Euro clowns judge Potocki will cover that up for ze Germans. Case 51482/18 (Single-Judge decision) |
The Motivations of Individual Judges and How They Act as a Group (Pdf)
By Shai Dothan
The judicial tactics used by courts are complicated and context-specific. An interesting, perhaps counter-intuitive result, is that courts build their reputation by deliberately issuing demanding judgments and using reasoning techniques that expose their discretion. Compliance with such judgments is harder and more unexpected and that is why when states do comply, they send a potent signal that boosts the court's reputation.
Importantly for the purposes of this paper, international courts are also advised to treat different states differently. States that enjoy a high-reputation for compliance with international law pose a greater threat to the court. Their non-compliance or even their criticism can significantly harm the court's reputation. To counter this threat, international courts treat high-reputation states more leniently than they do low-reputation states. They will reserve their most demanding judgments—especially those that are based on doctrinal novelties—to states that have a low-reputation.There is more. Here is the University of Birmingham. It is highly recommended to read their paper!
Managing judicial innovation in the European Court of Human Rights (Pdf)
by De Londras, Fiona; Dzehtsiarou, Kanstantsin
What this suggests, at the very least, is that the ECtHR is acutely aware of the political context in which its decisions are made and, indeed, of the extent to which it is on safe or shaky ground in the eyes of the relevant state party; considerations that become even more acute in situations in which sovereigntist urges might be said to run high.About the ECHR's "apparent willingness to treat different states somewhat differently in this context".
Managing Sovereigntist Inclinations
While issues that go to a state’s perceived identity bring about a reluctance to submit to international supervision on the part of states, matters that are seen to have existential implications for the state can draw out sovereigntist inclinations. In other words, in relation to these issues states can feel not only inclined but also justified in distancing themselves from international supervision and may instead concentrate on engaging with and within their domestic legal systems, making international courts’ supervision of these issues particularly difficult. This is clear from a consideration of the ECtHR’s treatment of national security cases and, in particular, its apparent willingness to treat different states somewhat differently in this context.Who would even dare to suggest that this august European Court "may well be susceptible to capture"?
If, as we suggest above, the Court sometimes takes cognisance of non-legal factors including the possible implications for its own position of taking an innovative approach to a question before it, it may well be susceptible to capture.As Shai Dothan put it, "high reputation states" may even " influence the outcome unduly". There is absolutely no doubt that the German administration was involved in getting Case 51482/18 thrown out!
In other words, there is a possibility that in either deciding whether to hear the case at all or in reaching its final decision on a case the Court may take into account contracting parties’ reactions and allow this to influence the outcome unduly.Or, as Lorenzo Zucca, for instance, criticised in footnote 57:
"what the ECtHR does not seem to understand is that its legitimacy as an international court of human rights also crucially depends on the quality of its reasoning, which should be regarded as exemplary in articulation and depth. Without those qualities, any decision is a defeat for justice even if it may be a Pyrrhic victory for institutional respectability" Zucca, ‘Lautsi: A Commentary on a Decision by the ECtHR Grand Chamber’ (2013) 11 International Journal of Constitutional Law 229.The EU is known for highly dissenting and quarrelling member states which is no wonder given the history of Europe as a whole and this can and does lead to "fragile foundations of the consent of the Contracting Parties". Footnote 102 reads:
Macdonald, a former judge of the ECtHR, has pointed out that the whole system of European human rights protection ‘rests on the fragile foundations of the consent of the Contracting Parties’. Macdonald, ‘The Margin of Appreciation’ in Macdonald, Matscher and Petzold (eds), The European System for the Protection of Human Rights (1993) 83 at 123.How about this to conclude?
"It has been well documented that non-judicial rapporteurs (Registry officers) sift through, assess and categorise the many incoming applications."This is from "Access to justice in the European Convention on Human Rights system" by Gerards and Glas from Utrecht in The Netherlands.
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