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Abstract
Against the background of the wider European context, this article analyses how the ECtHR and Norwegian courts cooperate for the effective implementation of the ECHR in Norway.
It begins with setting out a widely held understanding of the Convention system as a cooperative system with domestic courts as primary actors, and the ECtHR as a subsidiary actor for enforcing the ECHR. Against this background, the question is asked whether the ECtHR – through its use of and the manner in which it relates to Norwegian court decisions in its own judgments – encourages and reinforces the role of these courts as the primary actors in this system. It first analyses how the ECtHR endorses and promotes the direct engagement of Norwegian courts with the ECHR and ECtHR jurisprudence, as well as how it endorses and promotes good procedures and high-quality reasoning of these courts, which are likely to produce outcomes in conformity with the ECHR. Secondly, it examines whether the ECtHR also encourages the Norwegian courts to actively develop the rights of the Convention (“evolutive” interpretation).
The article furthermore discusses the potential problems of domestic courts becoming more active in applying the Convention, both for the Norwegian constitutional structure and the Convention system, and how the ECtHR and Norwegian courts address or should address these problems and improve their cooperation. This is done inter alia through a comparative analysis, highlighting what Norway can learn from other member states of the CoE; and what other member states can learn from Norway.
Acknowledgements
I would like to thank Professor Geir Ulfstein for his helpful comments on earlier versions of this draft. All remaining errors remain of course my own. This article was written under the auspices of the project “Judicial Dialogues on the Rule of Law: Inter-action between National Courts and the European Court of Human Rights”, financed by The Research Council of Norway/European Science Foundation (ECRP) [project number 203060]; and partly supported by the Research Council of Norway through its Centres of Excellence Funding Scheme, “PluriCourts – The Legitimacy of the International Judiciary” [project number 223274].
Notes
1 See e.g. J Meyer-Ladewig, EuropäischeMenschenrechtskonvention – Handkommentar (Baden-Baden, Nomos, 2011, 3rd ed), 30; D Harris et al. (eds), The Law of the European Convention on Human Rights (Oxford, Oxford University Press, 2009, 2nd ed), 557; A Voßkuhle, “Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund” (2010) 6 Eur Const Rev 175–198, analysing the cooperation between the German Constitutional Court, the ECtHR and the Court of Justice of the European Union; Lord Kerr, “The Need for Dialogue between National Courts and the European Court of Human Rights”, in S Flogaitis, T Zwart and J Fraser (eds), The European Court of Human Rights and its Discontents – Turning Criticism into Strength (Cheltenham, Edward Elgar, 2013), 104–15; J Christoffersen, “Individual Justice and Constitutional Justice: Can the Power Balance of Adjudication be Reversed?”, in J Christoffersen and MR Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford: OUP, 2011), 181–203, and one of the more recent speeches of the current president of the ECtHR, Dean Spielmann, “Whither the Margin of Appreciation?”, available online at http://www.echr.coe.int/Documents/Speech_20140320_London_ENG.pdf, 12.
2 ECHR, article 1.
3 ECHR article 52.
4 This flows, inter alia, from arts 35(1), 5, 6 and 13, ECHR.
5 ECHR, article 46(1).
6 ECHR article 19.
7 ECHR article 32(1).
8 See e.g. Ireland v. UK, judgment, app. no. 5310/71, 18 January 1978, para. 154; Guzzardi v. Italy, judgment, app. no. 7367/76, 6 November 1980, para. 86; Karner v. Austria, judgment, app. no. 40016/98, 24 July 2003, para. 26; and Konstantin Markin v. Russia, judgment (Grand Chamber), app. no. 30078/06, 22 March 2012, para. 89 (emphasis added).
9 The Court also made this domestic court role clear in Demir & Baykara v. Turkey, judgment (Grand Chamber), app. no. 34503/97, 12 November 2008, para. 86, where it observed in general terms that “in defining the meaning of terms and notions in the text of the Convention, [the Court] can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from . . . the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases” [my emphasis]. The practice of contracting states includes the practice of domestic courts. See also Kronfeldner v. Germany, judgment, app. no. 21906/09, 19 January 2012, para. 59, where the Court recognised the German Constitutional Court’s “continuing commitment to the protection of fundamental rights not only on national, but also on European level”.
10 See Interlaken Declaration – High Level Conference on the Future of the ECtHR, 19 February 2010, section B, paras. 4 and 5, available online at http://www.echr.coe.int/Documents/2010_Interlaken_FinalDeclaration_ENG.pdf; Brighton Declaration – High Level Conference on the Future of the ECtHR, 19 April 2012, paras. 7–9, available online at http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf; art. 1 of Protocol 15 to the ECHR, adopted on 24 June 2013 (to enter into force when ratified by all High Contracting Parties to the ECHR); and Protocol 16 to the ECHR.
11 Most prominently, see L Wildhaber, “A Constitutional Future for the European Court of Human Rights?” (2002) 23 Human Rights LJ 161–165; S Greer, “What’s Wrong with the European Convention on Human Rights?” (2008) 30 Human Rights Quarterly 680; S Greer and L Wildhaber, “Revisiting the Debate about ‘Constitutionalising’ the European Court of Human Rights” (2012) 12 Human Rights Law Rev 655–687.
12 E.g. P Leach, “Access to the European Court of Human Rights – From a Legal Entitlement to a Lottery?” (2006) 27 Human Rights Law J 11–25.
13 N Krisch. Beyond Constitutionalism – The Pluralist Structure of Postnational Law (Oxford, Oxford University Press, 2011).
14 See e.g. the sources cited supra in n 1.
15 Most prominently, see J Christoffersen, “Individual Justice and Constitutional Justice: Can the Power Balance of Adjudication be Reversed?”, in J Christoffersen and MR Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press, 2011), 181–203; J Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2009); Lord Kerr (n 1); A Voßkuhle (n 1); and M Andenæs and E Bjørge, “National Implementation of ECHR Rights” in A Føllesdal, B Peters and G Ulfstein (eds), The European Court of Human Rights in a National, European and Global Context (Cambridge, Cambridge University Press, 2014), 181–262, analysing the recent practice of national courts in several member states of the CoE that have accepted a proactive posture in the application and interpretation of the ECHR.
16 For an explanation of this terminology, see infra, n 47.
17 That Norwegian courts should fulfil this primary role is recognised in the literature, see e.g. J Aall, Rettstat og mennekerettigheter (Bergen, Fagbokforlaget, 2011, 3rd ed), 43.
18 This can happen either through direct application of the ECHR at the domestic level or through interpretation of domestic law in light of the Convention.
19 FOR-2014-06-20-778: Kunngjøring av Stortingets vedtak 27. mai 2014 om redigert versjon av Grunnloven kapittel E. og F. som følge av vedtatte grunnlovsforslag om menneskerettigheter.
20 See part 3 below for a discussion of what an “evolutive” interpretation of the ECHR possibly entails.
21 See the jurisprudence cited supra n 8.
22 W Sadurski, Constitutionalism and the Enlargement of Europe (Oxford, Oxford University Press, 2012), 49–50.
23 Some earlier cases are also included to illustrate developments in the interaction and cooperation between the ECtHR and Norwegian courts in securing the Convention rights.
24 See e.g. J Aall (n 17); M Andenæs and E Bjørge, “Norske domstoler og utviklingen av menneskrettighetene” (2011) 46(5) Jussens Venner, 251–86; E Møse, “Norway”, in R Blackburn and J Polakiewicz (eds), Fundamental Rights in Europe: The European Convention on Human Rights in its Member States, 1950–2000 (Oxford, Oxford University Press, 2001), 625–56; J Aall, “Prosessuelle garantier og forholdsmessighet i straffeprosessen” (2013) 48 Jussens Venner 227–258; Line Ravlo, “EMKs betydning for norsk prosessrett for norskprosessrett – en introduksjon” (2001) 36 Jussens Venner 319–336; and O Wiklund, “The Reception Process in Sweden and Norway”, in H Keller and A Stone Sweet (eds), A Europe of Rights – The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008), 198–208.
25 So far, the ECtHR has not established that there is an obligation under the ECHR for states to directly incorporate the Convention into domestic law, i.e. to give it direct effect beyond the scope of possible interpretation of domestic law, or to grant it supremacy over domestic law. See e.g. J Christoffersen, Fair Balance (n 15), 366; D Harris et al. (n 1), 23–24; C Grabenwarter and K Pabel, Europäische Menschenrecthskonvention (München, H.C. Beck, 2012, 5th ed), 15; J Aall (n 17), 51; and the relevant judgments of the Court, e.g. James & Others v. UK, judgment, app. no. 8793/79, 21 February 1986, paras.84–86; Holy Monasteries v. Greece, judgment, app. nos. 13092/87 and 13987/88, 9 December 1994, para. 90; McCann & Others v. UK, judgment (Grand Chamber), app. no. 18984/91, 27 September 1995, para. 153; and Christine Goodwin v. UK, judgment (Grand Chamber), app. no. 28957/95,11 July 2002, para. 113.
26 From the Court’s current interpretation of the ECtHR of relevant arts 5, 6 and 13 ECHR, outside specific contexts, domestic court powers to review alleged violations of the Convention can be restricted by domestic law or general policies. See e.g. the analysis by J Christoffersen, Fair Balance (n 15), 375–76; and D Harris et al. (n 1), 563–64 and 568–75, including critical comments of the Court’s rather limited interpretation of ECHR art. 13.
27 Lov av 21. Mai 1999 nr. 30. Lov om styrking av menneskerettighetenes stilling i norsk rett (menneskerettighetsloven).
28 Menneskerettighetsloven, paras. 2 and 3; see also the analysis by J Aall (n 17), 87–89; and O Wiklund (n 24), 188.
29 For details, see the analysis by J Aall (n 17), 72–79; and A Kierulf, “Rettsstatens overnasjonale vending: den andre prøvingsretten” (2009) 3–4 Nytt Norsk Tidsskrift 256–277.
30 This was not the case in all earlier cases against Norway that made it to the ECtHR, e.g. in Nilsen & Johnsen v. Norway, judgment, app. no. 23118/93, 25 November 1999 and Bergens Tidende & Others v. Norway, judgment, app. no. 26132/95, 2 May 2000. In more recent cases, the ECtHR regularly commends the Norwegian Courts for considering complaints before them in light of the ECHR and ECtHR jurisprudence. See also the overview of relevant judgments of the Norwegian Supreme Court applying and interpreting the ECHR/ECtHR jurisprudence by O Wiklund (n 24), 198–207. For more details, see also section 2.1 below.
31 See e.g. E Møse (n 24), 633 et seq; and O Wiklund (n 24), 184. This is in line with §92 of the Norwegian Constitution (as changed in May 2014, supra n 19). There is, however, some debate as to whether the Norwegian Constitution should also be interpreted in light of and in conformity with the Convention and the ECtHR’s jurisprudence. See e.g the analysis by A Kierulf, “Er internasjonale menneskerettigheter en relevant rettskilde ved grunnlovstolkning?” (2011) 34/1 Retfærd, 23–48. This issue is discussed in some more detail below, section 2.3.
32 Parallel processes taking place in the ECtHR’s interaction with domestic courts in other member states of the CoE have been analysed extensively by J Christoffersen, Fair Balance (n 15). The current analysis aims to highlight some specificities that characterise the ECtHR’s possible “strategy” in relation to Norway.
33 Bladet Tromsø & Stensaas v. Norway, judgment (Grand Chamber), app. no. 21980/93, 20 May 1999.
34 Lillo-Stenberg & Sæther v. Norway, judgment, app. no. 13258/09, 16 January 2014.
35 See the judgment of the Supreme Court cited in Nilsen & Johnsen v. Norway (n 30), para. 27; and the judgment of the Norwegian Supreme Court cited in Bergens Tidende & Others v. Norway, para. 24.
36 These two ECtHR judgments were Sunday Times v. UK, judgment, app. no. 6538/74, 26 March 1979 and Lingens v. Austria, judgment, app. no. 9815/82, 8 July 1986. See the judgment of the Nord-Troms District Court (herredsrett) cited in Bladet Tromsø & Stensaas v. Norway, para. 35. This case was never reviewed by the Norwegian Supreme Court.
37 E.g. Jersild v. Denmark, judgment (Grand Chamber), app. no. 15890/89, 23 September 1994, para. 31; De Haes & Gijsels v. Belgium, judgment, app. no. 19983/92, 24 February 1997, para. 37; and Goodwin v. UK, judgment (Grand Chamber), app. no. 17488/90, 27 March 1996, para. 39.
38 Bladet Tromsø & Stensaas v. Norway (n 33), para. 59.
39 Bladet Tromsø & Stensaas v. Norway (n 33) para. 64.
40 Bladet Tromsø & Stensaas v. Norway (n 33) para. 65.
41 See the decision of the Nord-Troms District Court cited in Bladet Tromsø & Stensaas v. Norway (n 33), para. 35.
42 In particular on Goodwin v. UK (n 37) para 39.
43 Bladet Tromsø & Stensaas v. Norway (n 33), paras. 68 and 72–73.
44 Bladet Tromsø & Stensaas v. Norway (n 33) para. 67. In this context, the Court relied on its earlier judgment Thorgeir Thorgeirson v. Iceland, judgment, app. no. 13778/88, 25 June 1992, para. 66.
45 As mentioned, the only ECtHR judgment that the Nord-Troms District Court had mentioned in its judgment was Lingens v. Austria, arguing that, due to the differences in the facts of the case, it was irrelevant for deciding the current case. See Bladet Tromsø & Stensaas v. Norway (n 33), para. 35 (p.18).
46 The ECtHR e.g. recognised the “relevant reasons” that the Nord-Troms District Court had brought forward for limiting Bladet Tromsø’s right to freedom of expression, namely the “legitimate aim of protecting the reputation or rights of the crew members” of the seal hunting vessel (Bladet Tromsø & Stensaas v. Norway (n 33), para. 61).
47 The term “strategy” has been put in quotation marks because it is difficult to determine at what point the judicial review by the ECtHR can be taken to reflect a deliberate strategy to encourage domestic courts’ correct and direct engagement with the Convention and evolving ECtHR jurisprudence. The ECtHR's previously mentioned conduct and some of its reasoning patterns hint to the fact that it follows a deliberate strategy. See also the example given below, text accompanying ns 69–82 and ns 110–119.
48 See e.g. Nilsen & Johnsen v. Norway (n 30), para. 52, where the Court on the one hand commended the Norwegian Supreme Court for having taken into account the conduct of the injured party when evaluating whether the defamatory statements that were made in reaction to this conduct were protected by the right to freedom of expression; but on the other hand it criticised the Norwegian Supreme Court for not giving the conduct of the injured party sufficient weight in their reasoning in line with the ECtHR’s earlier judgment Oberschlick v. Austria (No. 2), judgment, app. no. 20834/92, 1 July 1997, paras. 31–35.
49 See e.g. Bergens Tidende & Others v. Norway (n 35), para. 56 where, unlike the Norwegian Supreme Court, the ECtHR attached considerable weight to the fact that lower domestic courts had held that the impugned statements that Bergens Tidende had published had essentially been correct. This resulted in the ECtHR finding that the interviews in question, which had been published by Bergens Tidende, were not “excessive or misleading” and thus covered by art. 10 ECHR. It therefore rejected the finding of the Norwegian Supreme Court on the matter. In its reasoning, the ECtHR again relied on its own earlier judgments concerning art. 10, in particular on Jersild v. Denmark, paras. 31 and 34.
50 Tønsbergs Blad AS & Haukom v. Norway, judgment, app. no. 510/04, 1 March 2007.
51 A v. Norway, judgment, app. no. 28070/06, judgment, 9 July 2009.
52 See the relevant judgments of the Norwegian Supreme Court cited respectively in Tønsbergs Blad AS & Haukom v. Norway (n 50), para. 39 (Rt. 2003 s.928) and A v. Norway (n 51), para. 31.
53 In Tønsbergs Blad AS & Haukom v. Norway it found a violation of ECHR art. 10; in A v. Norway it found a violation of ECHR art. 8. In general, in cases concerning the balancing of the right to private life and freedom of expression, the ECtHR applies the same principles no matter whether an applicant complained about a violation of art. 8 or art. 10. The ECtHR has made this clear e.g. in Hachette Filipacchi Associés (ICI PARIS) v. France, app. no. 12268/03, 23 July 2009, para. 41; Timciuc v. Romania, decision, app. no. 28999/03, 12 October 2010, para. 144; and Mosley v. UK, app. no. 48009/08, 10 May 2011, para. 111.
54 Tønsbergs Blad AS & Haukom v. Norway (n 50), para. 87.
55 The ECtHR therefore referred to Bladet Tromsø & Stensaas v. Norway (n 33) (para. 63) in Tønsbergs Blad AS & Haukom v. Norway (n 50), para. 87.
56 See the judgment of the Norwegian Supreme Court cited in Tønsbergs Blad AS & Haukom v. Norway, para. 39 (paras. 45 and 46 of the Supreme Court’s judgment).
57 Tønsbergs Blad AS & Haukom v. Norway (n 50) paras. 90–98.
58 Tønsbergs Blad AS & Haukom v. Norway (n 50) paras. 92–94.
59 Tønsbergs Blad AS & Haukom v. Norway (n 50) para. 99, highlighting again a similar finding it had made in Bladet Tromsø & Stensaas v. Norway (n 33), para. 66. Both issues were given little weight by the Norwegian Supreme Court.
60 See the judgment of the Norwegian Supreme Court cited in A v. Norway (n 51) para. 32 (paras. 81–83 of the Supreme Court’s judgment).
61 See the judgment of the Norwegian Supreme Court cited in A v. Norway (n 51) para. 73.
62 Among them White v. Sweden, judgment, app. no. 42435/02, 19 September 2006, para. 26; Pfeifer v. Austria, judgment, app. no. 12556/03, 15 November 2007, para. 35; and Sanchez Cardenas v. Norway, judgment, no. 12148/03, 4 October 2007, para. 38; see A v. Norway (n 51), para. 64.
63 Sidabras & Džiautas v. Lithuania, app. nos. 55480/00 and 59330/00, 27 July 2004, para. 49.
64 Egeland & Hanseid v. Norway, judgment, app. no. 34438/04, 16 April 2009.
65 P4 Radio Hele Norge ASA v. Norway, decision, app. no. 76682/01, 6 May 2003.
66 P4 Radio Hele Norge ASA v. Norway, decision, app. no. 76682/01, 6 May 2003 at 7.
67 See the judgment of the Norwegian Supreme Court cited in Egeland & Hanseid v. Norway, para. 18 (paras. 20–26 of the quoted judgment of the Norwegian Supreme Court).
68 Egeland & Hanseid v. Norway, paras. 51–52.
69 Egeland & Hanseid v. Norway, paras. 57–63.
70 Similar approaches of the ECtHR can be observed concerning other countries. See e.g. Heinisch v. Germany, judgment, app. no. 28274/08, 21 July 2011, paras.72–74 and 78–80, where the ECtHR found a violation of ECHR article 8. In doing so, instead of (only) developing its “own” arguments, it very much relied on jurisprudence of domestic courts in judgments other than the one concerning Ms Heinisch. This can also be taken to reflect a “strategy” to point out good and poor arguments made by domestic courts. And similarly, Khlyustov v. Russia, judgment, app. no. 28975/05, 11 July 2013, para. 95, where the Court relied on judgments of the Russian Constitutional Court that were not followed by the domestic courts that had decided on Khlystov case; and Pyatkov v. Russia, app. no. 61767/08, judgment, 13 November 2012, para. 89 et seq.
71 Lillo-Stenberg & Sæther v. Norway (n 34).
72 Lillo-Stenberg & Sæther v. Norway (n 34) para. 44 [emphasis added].
73 Von Hannover v. Germany (No. 1), judgment, app. no. 59320/00, 24 June 2004.
74 Lillo-Stenberg & Sæther v. Norway (n 34) paras. 39 and 43.
75 See the relevant judgment of the Norwegian Supreme Court cited in Lillo-Stenberg & Sæther v. Norway (n 34), para. 13 (para. 37 of the Supreme Court’s judgment).
76 Lillo-Stenberg & Sæther v. Norway (n 34), para. 44.
77 Lillo-Stenberg & Sæther v. Norway (n 34) para. 44.
78 See e.g. Egeland & Hanseid v. Norway, para. 48; Tønsbergs Blad AS & Haukom v. Norway (n 50) para. 81; and Bergens Tidende v. Norway (n 35), para. 48.
79 See the analysis of Nilsen & Johnsen v. Norway, Bergens Tidende v. Norway, Bladet Tromsø & Stensaas v. Norway, Tønsbergs Blad AS & Haukom v. Norway and A v. Norway above.
80 Another judgment involving Norway where this was done by the ECtHR is the case K.T. v. Norway, judgment, app. no. 26664/03, 25 September 2008. In paragraph 83 where the Court reviews whether there was a violation of ECHR art. 6(1) in this case, it holds that “[w]here . . . the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law . . . and by finding, contrary to their view, that there was arguably a right recognised by domestic law . . .” (emphasis added).
81 Among the relevant more recent judgments are Aksu v. Turkey, judgment (Grand Chamber), app. nos. 4149/04 and 41029/04, 15 March 2012, para. 67; Von Hannover v. Germany (No. 2), judgment (Grand Chamber), app. nos. 40660/08 60641/08, 7 February 2012, para. 107; Axel Springer AG v. Germany, judgment (Grand Chamber) app. no. 39954/08, 7 February 2012, para. 88; Palomo Sánchez & Others v. Spain, judgment (Grand Chamber), app. nos. 28955/06, 28957/06, 28959/06 and 28964/06, 12 September 2011, para. 57; and MGN Ltd v. UK, judgment, app. no. 39401/04, 18 January 2011, paras. 150 and 155.
82 For some more details concerning the recent developments of this practice by the ECtHR see also section 2.3 below.
83 Concerning other countries, the ECtHR may encourage other, additional features in domestic court procedures and in their reasoning, e.g. the securing of sufficient evidence, the diligent application of domestic law or the highlighting and taking due account of relevant domestic circumstances. What conduct the ECtHR promotes seems also to depend on the stage of development of the relevant domestic system. See e.g. cases concerning Russia: Dirdizov v. Russia, judgment, app. no. 41461/10, 27 November 2012, para. 108, where the ECtHR criticised the schematic reasoning patterns of Russian courts, encouraging them to more directly engage with relevant ECtHR jurisprudence and to give better, individualised reasons for their decisions, including by addressing relevant facts. Similarly, see Idalov v. Russia, judgment (Grand Chamber), app. no. 5826/03, 22 May 2012, para. 147; and e.g. Pyatkov v. Russia, judgment, app. no. 61767/08, 13 November 2012, judgment, para. 107 et seq. In other cases, the ECtHR calls on Russian courts to conduct proportionality analyses, see e.g. Avilkina & Others v. Russia, judgment, app. no. 1585/09, 6 June 2013, para. 51. See also e.g. Khlyustov v. Russia, judgment, app. no. 28975/05, 11 July 2013, para. 101; and Ageyevy v. Russia, app. no. 7075/10, 18 April 2013, para. 238; or to conduct effective fact-finding, e.g. Kasparov & Others v. Russia, judgment, app. no. 21613/07, 3 October 2013, paras.63–69 and 88; and Dirdizov v. Russia, judgment, app. no. 41461/10, 27 November 2012, para. 98. The (possible) differences in the ECtHR’s “strategies” depending on the “nationality” and conduct of domestic courts is analysed in more detail by the current author elsewhere, comparing the ECtHR’s approach towards German domestic courts with the ECtHR’s approach towards Russian domestic courts (A Müller, “The ECtHR’s Engagement with German and Russian Courts’ Decisions: Encouraging Effective Cooperation between Domestic Courts and the ECtHR to Secure ECHR-Rights”, book chapter, forthcoming 2015).
84 It should be noted, also in this context, that it is frequently difficult to distinguish between a deliberate encouragement of domestic courts by the ECtHR and its plain review of domestic court decisions by the Court. Nonetheless, the fact that the ECtHR over time has developed some of its “encouragements” into obligations under the Convention (see the text accompanying infra ns 117–18), is indicative of its wish to strengthen the procedures in domestic courts that contribute to the effective implementation also of material provisions under the Convention.
85 The relationship between the width of the margin of appreciation and the standard of review that the Court applies is not entirely clear from its jurisprudence.
86 Among the many examples see Schwizgebel v. Switzerland, judgment, app. no. 25762/07, 10 September 2010, paras. 91 and 96; Enke v. Germany, decision, app. no. 545/08, 9 October 2009, 6/7; Ahrens v. Germany, judgment, app. no. 45071/09, 22 March 2012, para. 77 et seq; Aydin v. Germany, judgment, app. no. 16637/07, 27 January 2011, paras. 61–63; T.P. & K.M. v. UK, judgment (Grand Chamber), app. no. 28945/95, 10 May 2001, para. 72; Ageyevy v. Russia, judgment, app. no. 7075/10, 18 April 2013, para. 131. An example to the contrary is Hirst v. UK (No. 2), judgment, app. no. 47025/01, 30 March 2004. In this judgment, the ECtHR directly observed that neither the UK courts nor the UK parliament had deliberated the reasons why a general disenfranchisement of convicted prisoners was necessary in light of developments in penal policies and the protection of human rights (Hirst v. UK (No. 2), paras. 79–80), and subsequently conducted a strict analysis of questions of material law. See also the judgments mentioned in infra ns 117–18; and the more detailed analysis by J Christoffersen, Fair Balance (n 15), 455 et seq.
87 See e.g. the observation of the Court concerning an art. 8 case where it cannot determine whether the reasons domestic authorities adduced to justify an interference into a parent’s right to family life were “sufficient” without “at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8” (e.g. Anayo v. Germany, judgment, app. no. 20578/07, 21 December 2010, para. 65). See also the more detailed analysis by J Christoffersen, Fair Balance (n 15), 463–521.
88 This term has been used by the ECtHR for migrants with no residence permits in their host country in breach of immigration rules. See Üner v. The Netherlands, judgment (Grand Chamber), app. no. 46410/99, 18 October 2006, para. 59; and Maslov v. Austria, judgment (Grand Chamber), app. no. 1638/03, 23 June 2008, para. 75.
89 In these cases, there seems to be less of a necessity for the ECtHR to encourage the Norwegian courts to engage more directly with relevant ECtHR jurisprudence, since in all four cases, the Norwegian courts took account of ECHR art. 8 and largely also relevant ECtHR jurisprudence. See the summary of the High Court’s judgment on the matter in Darren Omoregie & Others v. Norway (n 90 below), paras. 23–30; the quote from the judgment of the Norwegian Supreme Court in the relevant case in Nunez v. Norway (n 91 below), para. 23 (paras. 66–67 of the Supreme Court’s judgment); the summary of the relevant Borgarting High Court judgment in Antwi & Others v. Norway, paras. 40–44; and the quote of the relevant judgment of the Borgarting High Court summarised in Butt v. Norway (n 108 below), paras. 28 and 38.
90 Darren Omoregie & Others v. Norway, judgment, app. no. 265/07, 31 July 2008.
91 Nunez v. Norway, judgment, app. no. 55597/09, 28 June 2011.
92 Antwi & Others v. Norway, judgment, app. no. 26940/10, 9 July 2012.
93 Kaplan & Others v. Norway, judgment, app. no. 32504/11, 24 July 2014.
94 This is has been the case in Darren Omoregie & Others v. Norway (n 90).
95 This was the case in Nunez v. Norway, Antwi & Others v. Norway and Kaplan & Others v. Norway. Settled migrants are migrants with an entitlement to stay in Norway on a temporary or permanent basis.
96 See the factors summarised in Darren Omoregie & Others v. Norway (n 90), para. 57; Nunez v. Norway (n 91), paras. 68–70; Antwi & Others v. Norway (n 92), para. 89; Butt v. Norway (n 108 below), para. 78; and Kaplan & Others v. Norway (n 93), para. 81, citing the relevant other ECtHR judgments in which these criteria have been developed (emphasis added).
97 Nunez v. Norway (n 91), para. 81.
98 In this context, the majority of the Norwegian Supreme Court relied heavily on the inadmissibility decision in Solomon v. The Netherlands, app. no. 44328/98, 5 September 2000, as well as on the judgment Rodrigues da Silva & Hoogkamer v. The Netherlands, judgment, app. no. 50435/99, 31 January 2006, para. 39. See the judgment of the Norwegian Supreme Court cited in Nunez v. Norway (n 91), para. 23 (paras. 66 and 67 of the judgment of the Norwegian Supreme Court).
99 Kaplan & Others v. Norway (n 93) paras. 90–91.
100 Kaplan & Others v. Norway (n 93) para. 90.
101 Kaplan & Others v. Norway (n 93) para. 93.
102 Kaplan & Others v. Norway (n 93) para. 98.
103 Antwi & Others v. Norway (n 92) para. 103; and Darren Omoregie & Others v. Norway (n 90), para. 68.
104 See the judgment of the Borgarting High Court summarised in Antwi & Others v. Norway (n 92), para. 41; and the judgment of the High Court summarised in Darren Omoregie & Others v. Norway (n 92) para. 30.
105 Antwi & Others v. Norway (n 92) para. 97.
106 Antwi & Others v. Norway (n 92) paras. 99–101.
107 Darren Omoregie & Others v. Norway (n 90), para. 66.
108 Butt v. Norway, judgment, app. no. 47017/09, 4 December 2012.
109 Butt v. Norway, judgment, app. no. 47017/09, 4 December 2012 para. 90. In contrast to the other cases analysed, this case did not involve a question about the best interests of the applicants’ children that had to be taken into account when evaluating as to whether “exceptional circumstances” existed.
110 A v. Norway (n 51) paras. 72–73.
111 Lillo-Stenberg & Sæther v. Norway (n 34), paras. 38, 43–44.
112 It should be noted, however, that it is difficult to determine when exactly the Court lowers its standard of review due to the conduct of domestic courts. Often, this involves an interplay of the Court reviewing whether domestic courts followed procedural and material obligations under the Convention. The quote given above from Lillo-Stenberg & Sæther v. Norway in the text accompanying supra n 76 suggests, however, that the Court indeed lowered its standard of review due to the conduct of domestic courts. In particular, if compared with the Court’s review of Norwegian courts’ conduct in Egeland & Hanseid v. Norway, Tønsbergs Blad AS & Haukom v. Norway and BergensTiende v. Norway, it arguably scrutinised the arguments brought forward by domestic courts in Lillo-Stenberg less thoroughly, due to the fact that the domestic courts had “undertaken” the “balancing exercise . . . in conformity with the criteria laid down in the Court’s case law”. The fact that the domestic courts also considered the situation in which the affected individuals found themselves, may also have contributed. In cases concerning other countries, the connection between the fact that domestic courts take due account of the very situation of the applicant and the Court lowering its standard of review (sometimes only concerning questions of material law) is clearer – see e.g. the cases and literature cited supra ns 86–87 and infra ns 117–18.
113 Johansen v. Norway, judgment, app. no. 17383/90, 7 August 1996.
114 Lindheim & Others v. Norway, judgment, app. nos. 13221/08 and 2139/10, 12 June 2012.
115 Johansen v. Norway (n 113) para. 84.
116 Johansen v. Norway (n 113) para. 83.
117 These procedural obligations under art. 8 have been developed in the Court’s case-law over the years, see e.g. W. v. UK, judgment, app. no. 9749/82, 8 July 1987, paras. 61–70; L. v. Finland, judgment, app. no. 25651/94, 27 April 2000, paras.120–1; K. & T. v. Finland, judgment, app. no. 25702/94, 12 July 2001, paras.168 and 173–4; and K. and A. v. Finland, judgment, app. no. 27751/95, 14 January 2003, paras. 103–4, 117 and 124. See also the more detailed analysis by J Christoffersen, Fair Balance (n 15), 463–78.
118 K. & T. v. Finland, para. 179; and K. & A. v. Finland, paras.138–46; and the more detailed analysis by J Christoffersen, Fair Balance (n 15), 463–78.
119 Aune v. Norway, judgment app. no. 52502/07, 28 October 2010, paras. 78–79.
120 Lindheim & Others v. Norway (n 114) paras. 128 and 134–35.
121 Lindheim & Others v. Norway (n 114) para. 134.
122 Lindheim & Others v. Norway (n 114) paras. 128 and 135.
123 Depending on shape and stage of development the domestic system for the protection of fundamental rights, including the effectiveness of the domestic judicial system, the ECtHR’s focus on how it encourages domestic courts to become more pro-active in their application and interpretation of the ECHR might differ from the focus chosen concerning Norwegian courts. Cf. supra, n 83.
124 See the analysis above of the judgments Nielsen & Johansen v. Norway, Bergens Tidende v. Norway and Bladet Tromsø & Stensaas v. Norway.
125 See the analysis above of the judgments Tønsbergs Blad AS & Haukom v. Norway, A v. Norway and Egeland & Hanseid v. Norway.
126 See the discussion in section 2.2.1 above.
127 Aksu v. Turkey, judgment (Grand Chamber), app. nos. 4149/04 and 41029/04, 15 March 2012, para. 67. See also the judgments mentioned in supra n 81.
128 Schwizgebel v. Switzerland, para. 96.
129 Schwizgebel v. Switzerland para. 97; see also the many additional cases diligently discussed by J Christoffersen, Fair Balance (n 15), 470–501.
130 See also the speech of the president of the ECtHR, Dean Spielmann, of 20 March 2014, noting that the margin of appreciation is “neither a gift nor a concession. . . but instead an incentive to national courts to conduct the requisite Convention review”, p.12, available online at http://www.echr.coe.int/Documents/Speech_20140320_London_ENG.pdf (emphasis added).
131 Even though the Court regularly only uses the margin of appreciation doctrine concerning arts.8–11, 14 ECHR and art. 1 P-I, its standard of review varies also in regard to other rights of the Convention. See, for example, Schwabe & M.G. v. Germany, judgment, app. nos. 8080/08 and 8577/08, 1 December 2011, paras. 77 and 88 and Storck v. Germany, judgment, app. no. 61603/00, 16 June 2005, paras. 92–99, where the domestic courts neither analysed domestic law in light of ECHR art. 5(1) nor gave good reasons for keeping the applicants in preventive detention. This arguably contributed to the ECtHR reviewing the respective judgments of German courts quite thoroughly. See also the more detailed analysis involving cases other than ECHR arts. 8–11 by J Christoffersen, Fair Balance (n 15), 489–501.
132 See the dissenting opinion of judges Sajo, Lazarova, Trajkovska and Vucinic in Mouvement Raelien Suisse v. Switzerland, judgment (Grand Chamber), app. no. 16354/06, 13 July 2012. In this context, see also the concurring opinion of judge Rozakis to Egeland & Hanseid v. Norway, criticising the “automaticity of [the Court’s] reference to it [the margin of appreciation doctrine]”.
133 Note that these are rather general suggestions concerning the more general use of the ECHR and relevant ECtHR jurisprudence by Norwegian courts. More differentiated suggestions would require a more detailed analysis of the practice of Norwegian courts that go beyond the scope of this article.
134 See e.g. A v. Norway and Tønsbergs Blad AS & Haukom discussed above. From among the more recent cases, Lindheim & Others v. Norway is one example (n 114). Concerning the former, see also the observations by S Solheim, “EMDs avgjørelse i tomtefest saken: revolusjonerende eller justerende?” (2013) 52(4) Lov og Rett, 305–306.
135 See the analysis above, text accompanying supra ns 60–63. Other cases where this could have been relevant are Nunez v. Norway and as well as Bladet Tromsø & Stenaas v. Norway.
136 Vilnes & Others v. Norway, judgment, app. nos. 52806/09and 22703/10, 5 December 2013.
137 Roche v. UK, judgment (Grand Chamber), app. no. 32555/96, 19 October 2005.
138 Guerra & Others v. Italy, judgment (Grand Chamber), app. no. 14967/89, 19 February 1998, para. 60.
139 Öneryıldız v. Turkey, judgment (Grand Chamber), app. no. 48939/99, 30 November 2004, para. 90.
140 Budayeva & Others v. Russia, judgment, app. nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008, para. 132.
141 Vilnes & Others v. Norway (n 136) para. 235–36.
142 See in particular the analysis by A Kierulf (n 31).
143 See e.g. J Aall (n 17), 24. All other Norwegian law will be overruled by the ECHR in case of conflict as is clear from para. 3 of the Human Rights Act (cf. supra n 27). See also O Wiklund (n 24), 188; and V Blaker Strand, “Forhold mellom den norske Grunnlovens menneskerittigheter, de internasjonale menneskerettskonvensjonene og oridnær lovgiving” (2007) 30/4 Retfærd 1–23, 3 and 8–9.
144 See e.g. J Aall (n 17), 24; EM Boe (n 108) 382; O Wiklund (n 24), 178, 184 and 186.
145 §92 reads: “Statens myndigheter skal respektere og sikre menneskerettighetene slik de er nedfelt i denne grunnlov og i for Norge bindende traktater om menneskerettigheter”. This includes courts that should interpret Norwegian law in line with Norway’s international human rights obligations. See also the analysis by F Arnesen and A Stenvik, Internasjonalisering og juridisk metode (Oslo, Universitetsforlaget, 2009), 59–65; and O Wiklund (n 24), 186–88.
146 Among those who support such an “autonomous” interpretation of the Norwegian Constitution are E Smith, Konstitutsjonelt Demokrati: statsforfatningsretten i prinsipielt og komparativt lys (Bergen, Fagbokforlaget, 2nd ed, 2012), 164; and EM Boe (n 108) 402–4.
147 Among those who support this approach are A Fliflet, Grunnloven – Kommentarutgave (Oslo, Universitetsforlaget, 2005), 28–29; A Kierulf (n 31); V Blaker Strand (n 143) 17–20; and B Moltumyr Høgberg, Forbud mot tilbakevirkende lover (Oslo, Universitetforlaget, 2010), 29–32.
148 See the discussion by A Kierulf (n 31), 40–45; EM Boe (n 108) 402–3; and F Arnesen and A Stenvik (n 145) 59–65, 66–68.
149 See A Kierulf (n 31); and V Blaker Strand (n 143) 18–20, asking relevant critical questions in this regard.
150 This danger is one of the reasons why Blaker Strand opposes an “autonomous” interpretation of the rights protected by the Norwegian Constitution, see V Blaker Strand (n 143) 21.
151 FootnoteSee above, text accompanying ns 2–9.
152 This is also recognised by A Kierulf (n 31), 35–36.
153 This should be the case in the vast majority of cases; see the discussion below of exceptional cases in which the Norwegian Supreme Court might consider to resist following ECtHR jurisprudence. See infra n 157 and the text accompanying infra ns 162–76.
154 E.g. M v. Germany, judgment, app. no. 19359/04, 17 December 2009.
155 Formally, in the hierarchy of domestic sources of German law, the ECHR still only has the rank of an ordinary federal law and thus stands below the German Constitution. A similar situation could appear in Norway if the Norwegian Supreme Court would directly establish that Norwegian courts are bound to interpret Norwegian law, including the hierarchically higher Grunnlov, in conformity with the ECHR and ECtHR jurisprudence.
156 German Constitutional Court (BVerfG), 2 BvR 2365/09, 4 May 2011, margin nos. 89–90, at http://www.bverfg.de/entscheidungen/rs20110504_2bvr236509.html. The BVerfG substantiated its reasoning with reference to the Basic Law’s “openness to international law” and in particular to international human rights law, and to the general aim of the Basic Law to avoid conflicts between national and international law.
157 BVerfG, 2 BvR 2365/09, 4 May 2011, margin nos. 93–94. The exceptions are: (a) cases that involve so-called “mehrpoligeGrundrechtsverhälnisse”, i.e. cases where different rights of different people have to be weighed against each other. The German Constitutional Court argues that in these cases it could be that if the right of one person is broadened by ECtHR jurisprudence, this might at the same time limit the right of another person. In such a case, the domestic courts might still come to different conclusions from the ECtHR; and (b) cases where following ECtHR jurisprudence “no longer seems justifiable according to recognised methods of statutory and constitutional interpretation”. It is somewhat unclear when this is the case, but most commentators hold that it will only be the case when a judgment of the ECtHR would conflict with the absolute core content of the constitutional identity of the Basic Law which seems to be a theoretical possibility only.
158 Görgülü v. Germany, judgment, app. no. 74969/01, 26 February 2004.
159 German Constitutional Court (BVerfG), 2 BvR 1481/04, 14 October 2004, margin nos. 31–32, at http://www.bverfg.de/entscheidungen/rs20041014_2bvr148104.html. See also the analysis by A Zimmermann, “Grundrechtsschutz zwischen Karlsruhe und Straßburg”, Schriftenreihe der Juristischen Gesellschaft zu Berlin (Heft 190, 2012), 30; and H Sauer, “Die Neue Schlagkraft der Gemeineuropäischen Grundrechtsjudikatur – Zur Bindung Deutscher Gerichte an die Entscheidungen des Europäischen Gerichtshofs für Menschenrechte” (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 35–69, p. 45.
160 E.g. Kronfelnder v. Germany, app. no. 21906/09, judgment, 19 January 2012, para. 59: “It [the Court] welcomes the Federal Constitutional Court’s approach of interpreting the provisions of the Basic Law also in the light of the Convention and this Court’s case-law, which demonstrates that court’s continuing commitment to the protection of fundamental rights not only on national, but also on European level. It agrees with the Government that by its judgment, the Federal Constitutional Court implemented this Court’s findings in its above-mentioned judgments on German preventive detention in the domestic legal order. It gave clear guidelines both to the domestic criminal courts and to the legislator on the consequences to be drawn in the future from the fact that numerous provisions of the Criminal Code on preventive detention were incompatible with the Basic Law, interpreted, inter alia, in the light of the Convention. Its judgment thus reflects and assumes the joint responsibility of the State Parties and this Court in securing the rights set forth in the Convention”. See, similarly, S v. Germany, judgment, app. no. 3300/10, 28 June 2012, para. 115; G v. Germany, judgment, app. no. 65210/09, 7 June 2012, para. 45 et seq; and Glien v. Germany, judgment, app. no. 7345/12, 28 November 2013, paras. 42 et seq.
161 For a more detailed analysis of the legal questions involved in the issue of preventive detention in Germany under German law and the ECHR, as well as the role of the interaction between the ECtHR and German courts to solve them, see e.g. C Michaelsen, “‘From Strasbourg with Love’ – Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights” (2012) 12 Human Rights L Rev 148–167.
162 See e.g. the speech by Sir Nicolas Bratza, “The Relationship between UK Courts and Strasbourg” (2011) 5 European Human Rights Law Rev 505–512, 507; Lord Kerr (n 1), 112–13; and E Bjørge, “National Supreme Courts and the Development of ECHR Rights” (2011) 9 International J of Const Law 5.
163 Among many, see e.g. S.A.S v. France, judgment (Grand Chamber), app. no. 43835/11, 1 July 2014, para. 129; and Maurice v. France, judgment (Grand Chamber), app. no. 11810/03, para. 117.
164 Among many, see e.g. Winterwerp v. The Netherlands, judgment, app. no. 6301/73, 24 October 1979, para. 46, where the Court observed that “[i]t is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law, even in those fields where the Convention “incorporates” the rules of that law: the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection.” See also the analysis by J Christoffersen, Fair Balance (n 15), 289–96.
165 Among many, see e.g. Johanson v. Norway (1996), para. 73; Finogenov & Others v. Russia, judgment, app. nos. 18299/03 and 27311/03, 20 December 2011, para. 237, where the Court observed “that its fact-finding capacity is limited. As a result, and in line with the principle of subsidiarity, the Court prefers to rely, where possible, on the findings of competent domestic authorities.” See also the analysis by J Christoffersen, Fair Balance (n 15), 276–88.
166 Al-Khawaja & Tahery v. UK, judgment (Chamber), app. nos. 26766/05 and 22228/06, 20 January 2009; and Khawaja & Tahery v. UK, judgment (Grand Chamber), app. nos. 26766/05 22228/06, 15 December 2011.
167 Al-Khawaja & Tahery v. UK (GC) (n 166) para. 147. See also the analysis by Lord Kerr (n 1), 106–8.
168 In Maltzan & Others v. Germany, decision (Grand Chamber), app. nos. 71916/01, 71917/01 and 10260/02, 2 March 2005, and Jahn & Others v. Germany, judgment (Grand Chamber), app. no. 46720/99 72203/01 72552/01, 30 June 2005, the ECtHR departed from its earlier Chamber judgment in Jahn & Others v. Germany (Chamber) app.nos. 46720/99 72203/01 72552/01, 22 January 2004. Contrary to the ECtHR Chamber judgment, the Federal Constitutional Court had argued that the expropriation of inherited land reform property did not violate the right to property. The Constitutional Court’s judgment were given extensive attention by the ECtHR in Maltzan & Others v. Germany (paras. 85–114) and, even if to a lesser extent, also in Jahn & Others v. Germany (Grand Chamber) (paras. 106 and 116(c)). See also A Voßkuhle (n 1) 187.
169 In Vilho Eskelinen & Others v. Finland, judgment (Grand Chamber), app. no. 63235/00, 19 April 2007, the Court modified and clarified the approach it had taken on the applicability of art. 6 ECHR to civil servants in Pellegrin v. France, judgment (Grand Chamber), app. no. 28541/95, 8 December 1999. The reason for this was inter alia that domestic courts and the ECtHR itself had practical difficulties with applying the interpretation of art. 6(1) ECHR in regard to civil servants that were brought forward by the Grand Chamber in Pellegrin v. France. See Vilho Eskelinen & Others v. Finland, paras. 50–62.
170 See the observations by Lord Kerr (n 1), 105 in this regard.
171 Judgments the implementation of which would just be inconvenient for national authorities would be excluded here.
172 This was recognised in particular in the concurring opinion of the British judges at the time, Sir Nicolas Bratza, in his concurring opinion to the Grand Chamber’s judgment in Al-Khawaja & Tahery v. UK; see also Lord Kerr (n 1), 105.
173 Often, “good reasons” will be related to issues where the ECtHR’s role in adjudicating the ECHR is, as a matter of fact, subsidiary, due to the Court’s position as a regional court. These areas concern the thorough establishment and assessment of facts and evidence as well as the application of and interpretation of domestic law. For a more detailed analysis of the (necessarily) subsidiary role of the ECtHR in these areas, see J Christoffersen, Fair Balance (n 15), 276–96.
174 See the observations by GertudeLübbe-Wolf, “How Can the European Court of Human Rights Reinforce the Role of National Courts in the Convention System?”, in Dialogue between Judges 2012, p.15, available online at http://www.echr.coe.int/Documents/Dialogue_2012_ENG.pdf.
175 (Anecdotal) evidence for this is first the very narrow exceptions that the German Constitutional Court construed for occasions in which German courts could potentially reject the application of ECtHR jurisprudence (see supra n 157); and secondly, the readiness of national courts to implement an ECtHR judgment even in cases where they do not agree with the ECtHR’s interpretation and application of the ECHR in a particular case, especially where such implementation does not have larger implications for the domestic legal system (see e.g. the Swiss Federal Court’s judgment of 15 September 2010, 9F_9/2009, reluctantly giving effect to the ECtHR judgment Schlumpf v. Switzerland, judgment, app. no. 29002/06, 8 January 2009).
176 This can be inferred from the fact that the Norwegian Supreme Court did not yet feel the need not to follow an ECtHR judgment against Norway, even though it can be assumed that not all these judgments were met enthusiastically.
177 Cf. the ECtHR jurisprudence cited supra n.8.
178 Cf. the ECtHR jurisprudence cited supra in n. 9, and the literature cited infra in n. 183.
179 The “living instrument doctrine” was first adopted by the Court in 1978 in its Tyrer v. UK, judgment, app. no. 5856/72, 25 March 1978, para. 31.
180 For an overview of relevant jurisprudence where the ECtHR sets out the its understanding of “evolutive” interpretation see K Dzehtsiarou, “European Consensus and the Evolutive Interpretation of the European Convention on Human Rights” (2011) 12 German Law J 1730–1745.
181 This preference is noted by D Harris et al. (n 1), 8. It has also been made clear by the former president of the Court, Sir Nicolas Bratza, in his speeches a number of times. See e.g. his 2012 speech on the solemn hearing on the occasion of the opening of the judicial year, in CoE, “Dialogue between judges: How can we ensure greater involvement of national courts in the Convention system?”, proceedings of the seminar, 27 January 2012, available online at http://www.echr.coe.int/Documents/Dialogue_2012_ENG.pdf, p.27; see also K Dzehtsiarou (n 180) 1741–45, arguing that the European consensus doctrine injects predictability into the Court’s use of evolutive interpretation.
182 The connection between states’ primary implementation obligations and the ECtHR’s subsidiary supervisory function has been made clear several times in the context of the reform debate of the ECtHR, cumulating in the most recent changes to the preamble of the Convention by Protocol No. 15 that will result in including a reference to the principle of subsidiarity and the margin of appreciation into the preamble as soon as the Protocol enters into force (Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series – No. 213, adopted 24 June 2013, not yet entered into force).
183 That such active engagement of domestic courts with the Convention is desired by the ECtHR, is obvious from the ECtHR’s jurisprudence (see e.g. E Bjørge, “National Supreme Courts and the Development of ECHR Rights” (2011) 9 Int J of Const Law 5–31, 9–13); and from the speeches by the former and current president of the ECtHR, Sir Nicolas Bratza and Dean Spielmann. See e.g. speech by Sir Nicolas Bratza at the High level Conference on the future of the Court, Brighton, 20 April 2012, available online at http://www.echr.coe.int/Documents/Speech_20120420_Bratza_Brighton_ENG.pdf, 3–5; and the Opening Speech of President Dean Spielmann at the Solemn Hearing of the European Court of Human Rights on the Occasion of the Opening of the Judicial Year, January 2014, available online at http://www.echr.coe.int/Documents/Dialogue_2014_ENG.pdf, 32.
184 Rt. 2000 s. 996 (P), (Bøhlerdommen). For more details see also section 3.2 below, text accompanying ns 238-239.
185 See the “definition” of “evolutive” interpretation by Eirik Bjørge, Evolutionary Interpretation of Treaties, Doctoral dissertation submitted to the Faculty of Law, University of Oslo, 2013, p.1; and by SondreTorp Helmersen, “Evolutive Treaty Interpretation: Legality Semantics and Distinctions” (2013) 6 European J of Legal Studies 127–148, p.128.
186 Judgment of the Oslo High Court (TOSLO-2013-103468) of 2 June 2014.
187 Oslo High Court (TOSLO-2013-103468); see the argument of the claimant, pp. 4 and 19, and the argument of the respondent, p. 7.
188 Such practice seems to be accepted by the Norwegian Supreme Court. See e.g. Rt. 2005 s.833, avsnitter 45–47; and the analysis by J Aall (n 17), 91–92.
189 That this process is actually taking place to some extent, is observed by M Andenæs and A Motzfeldts Kravik, “Norske verdier og EMK” (2010) 49(4) Lov og Rett 579–99; and M Andenæs and E Bjørge, “The Norwegian Court Applies the ECHR by Building upon Its Underlying Principles”, (2013) 19(2) European Public Law 241–46. It is also not excluded that the Norwegian Supreme Court takes account of legislative intentions in this process, in particular when the parliament has evaluated the implications of a given domestic law in light of the Convention/ECtHR jurisprudence. On the latter, see the analysis by J Aall (n 17), 94–100.
190 Article 53 ECHR reads: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is party.”
191 Lillo-Stenberg & Sæther v. Norway (n 34), para. 44.
192 Judgment of the Norwegian Supreme Court, cited in Lillo-Stenberg & Sæther v. Norway, para. 13 (para. 40 of the Norwegian Supreme Court’s judgment).
193 Judgment of the Norwegian Supreme Court, cited in Lillo-Stenberg & Sæther v. Norway, para. 13 (para. 40 of the Norwegian Supreme Court’s judgment).
194 Lillo-Stenberg & Sæther v. Norway (n 34), para. 37. The Court referred directly to its finding in Von Hannover v. Germany (No. 2), para. 110.
195 Lillo-Stenberg & Sæther v. Norway (n 34)9, para. 36, referring to Von Hannover v. Germany (No.2), para. 109.
196 Lillo-Stenberg & Sæther v. Norway (n 34), para. 44. See also the observations above, text accompanying ns 76–80.
197 Johansen v. Norway, judgment, supra n 113.
198 Johansen v. Norway, decision, app. no. 12750/02, 10 October 2002.
199 See the judgment of the Norwegian Supreme Court cited in Aune v. Norway (n 119) para. 37 (para. 51 of the Supreme Court’s judgment).
200 Johansen v. Norway, judgment (n 113) para. 78.
201 Johansen v. Norway, decision (n 198) pp. 12 and 13.
202 See the judgment of the Norwegian Supreme Court cited in Aune v. Norway (n 119) para. 37 (para. 51 of the Supreme Court’s judgment).
203 Aune v. Norway (n 119) para. 73.
204 See the ECtHR’s considerations of the particular situation of the child, his foster parents as well as the birth parents in Aune v. Norway (n 119) paras. 67–72 and 75–77 that had also featured high in the Supreme Court’s judgment in this case.
205 K.T. v. Norway, supra n. 80.
206 See the judgment of the Norwegian Supreme Court (Rt. 2003 s. 301, 4 March 2003) cited in K.T. v. Norway, para. 36 (para. 32 of the Supreme Court’s judgment).
207 See the judgment of the Norwegian Supreme Court cited in K.T. v. Norway, para. 36 (paras. 33–36 of the Supreme Court’s judgment).
208 See the judgment of the Norwegian Supreme Court cited in K.T. v. Norway, para. 36 (paras.37–46 of the Supreme Court’s judgment). See also the analysis and summary of this case by O Wiklund (n 24), 203–4.
209 The fact that the Court’s restrictive interpretation of art. 13 ECHR in most areas prevents exactly this has been noted, e.g., by D Harris et al. (n 1) 575; J Aall (n 17), 79; and J Christoffersen, Fair Balance (n 15), 383–99.
210 See also the analysis and discussion of additional relevant recent jurisprudence of the Norwegian Supreme Court that cannot be covered here by M Andenæs and E Bjørge (n 24), 268–76; M Andenæs and A Motzfeldt Kravik (n 189) 579–99, 585–94; and by O Wiklund (n 24), 198–207.
211 Article 4(1) P-7 ECHR reads: “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
212 Rt. 2002 s. 557(P).
213 [Emphasis added]. For more details see also the analysis by M Andenæs and E Bjørge (n 24), 268–9.
214 Göktan v. France, judgment, app. no. 33402/96, 2 July 2002, para. 53.
215 See the analysis by M Andenæs and A Motzfeldt Kravik (n 189) 579–99, 588, referring to Rt. 2003 s. 264(A), Rt. 2003 s. 394(A), Rt. 2003 s. 1100 (A) and Rt. 2004 s. 1368(A).
216 See Rt. 2002 s. 557(P); Rt. 2003 s. 264(A), Rt. 2003 s. 394(A), Rt. 2003 s. 1100 (A) and Rt. 2004 s. 1368(A) and the minority opinion in Rt. 2006 s. 1409 (P). In the latter judgment, the majority backtracked from their “progressive” position that had been developed in the obiter dicta of the earlier judgments, following criticism from the prosecuting authorities that the interpretation went beyond what was required by ECtHR jurisprudence. For a more detailed analysis see M Andenæs and A Motzfeldt Kravik (n 189) 579–99, 588; and JP Rui, “Forbudet mot gjentatt straffeforfølgning (ne bis in idem) in Den europeiske menneskerettighetskonvensjon protokoll 7 artikkel 4 – på ny” (2009) 45(5) Lov og Rettv 283–98.
217 Sergey Zolotukhin v. Russia, judgment (Grand Chamber), app. no. 14939/03, 10 February 2010.
218 While the section on “Relevant Comparative and International Law” of the Sergey Zolotukhin v. Russia judgment (paras. 31–44) included references to the ICCPR, the Rome Statute of the International Criminal Court, the EU Charter of Fundamental Rights of the EU, relevant jurisprudence of the CJEU, and American Convention on Human Rights and jurisprudence of the US Supreme Court, it does not contain comparative material from member states of the CoE.
219 The Court could have done this e.g. in the above mentioned case K.T. v. Norway.
220 Against this background, the observation by Arnesen and Stenvik that the ECtHR’s “evolutive” interpretation style results in a situation that “… konvensjonens ordlyd ikke er noen pålitelig indikator for å forutsi de resultater organene vil komme til”, or “… the Convention's wording is not a reliable indicator to predict the results bodies will arrive at” (author's translation) seems exaggerated. See F Arnesen and A Stenvik (n 145) 28.
221 See e.g. Kronfeldner v. Germany, para. 59, supra ns 9 and 160.
222 See for example the cases concerning Germany, France and the United Kingdom discussed by E Bjørge, “The Status of the ECHR in Norway: Should the Norwegian Supreme Court interpret the Convention Dynamically?” (2010) 16(1) European Public Law, 45–50, 9–13.
223 To give a few randomly selected examples, see e.g. Svinarenko & Slyadnev v. Russia, judgment (Grand Chamber), app. nos. 32541/08 43441/08, 17 July 2014, paras. 75–76; Micallef v. Malta, judgment (Grand Chamber), app. no. 17056/06, 15 October 2009, para. 31; Vo v. France, judgment (Grand Chamber), app. no. 53924/00, 8 July 2004, para. 41; and Christine Goodwin v. UK, judgment (Grand Chamber), app. no. 28957/95, 11 July 2002, para. 85.
224 Among many, see e.g. JE Skoghøy, “Dynamisk tolking i internasjonale domestoler som fenomen, problem og effektivitetsgaranti” (2011) 50/9 Lov og Rett 511–530, 527–28; and the discussion by K Dzehtsiarou (n 180) 1734–40. Further, see also the discussion below, text accompanying infra ns 251–59.
225 A limited law-making function of Norwegian courts is also recognised, see e.g. JE Skoghøy (n 224) 514 and 528.
226 There are some judgments where this has been the case. See e.g. Vinter & Others v. UK, judgment (Grand Chamber), app. nos. 66069/09, 130/10 and 3896/10, 9 July 2013, paras. 69–72; Leyla Şahin v. Turkey, judgment (Grand Chamber), app. no. 44774/98, 10 November 2005, paras. 55–65; Animal Defenders International v. UK, judgment (Grand Chamber), app. no. 48876/08, 22 April 2013, para. 67; and Sindicatul “Păstorulcel Bun” v. Romania, judgment (Grand Chamber), app. no. 2330/09, 9 July 2013, para. 61.
227 In many cases where an ECtHR judgment contains a section on “comparative and international law”, this section includes mainly decisions of other international courts/quasi-judicial bodies and sometimes of national courts from non-CoE countries. See the example of the ECtHR Grand Chamber judgment Zolotukhin v. Russia mentioned above, where the ECtHR could have relied on the “progressive” judgments of the Norwegian Supreme Court concerning art. 4(1) P-7.
228 Cf. supra, n.22.
229 Stübing v. Germany, para. 66.
230 Stübing v. Germany para. 60.
231 Stübing v. Germany paras. 30 and 61.
232 These arguments of the German Constitutional Court’s judgment are summarised in Stübing v. Germany, paras.16–22; they were followed by the ECtHR, see paras. 63–65.
233 Stübing v. Germany, para. 30.
234 See the arguments of the dissenting opinion to the German Constitutional Court’s decision summarised in Stübing v. Germany, para. 23.
235 Among these alternative measures could be youth welfare measures taken by family courts. See the arguments of the dissenting opinion to the German Constitutional Court’s decision summarised in Stübing v. Germany, para. 25.
236 See also the critical assessment of Stübing v. Germany by P Thielbörger, “Judicial Passivism at the European Court of Human Rights” (2012) 19 Maastricht J of Eur & Comp Law 341–347.
237 Konstantin Markin v. Russia, judgment (Grand Chamber), app. no. 30078/06, 22 March 2012, para. 98. Also, in this case, the Russian Constitutional Court had argued that a Russian law, giving the right to take parental leave only to female members of the Russian armed forces, was in line with the Russian Constitution’s equality of rights between men and women. The Russian Constitutional Court saw no need to interpret the relevant Russian law “evolutively” in light of the Convention. See the arguments of the Russian Constitutional Court summarised in para. 34 (para. 2.2 of the Constitutional Court’s judgment) of Konstantin Markin v. Russia (Grand Chamber).
238 Rt. 2000 s. 996 (P), (Bøhlerdommen). In line with section 3 of the Human Rights Act, it clarified that when considering a case that included a fundamental rights question and the solution flowing from the ECHR was reasonably clear, this solution should be relied on by domestic courts, even if this would mean that well-established Norwegian legislation had to be set aside (except for the Constitution).
239 Rt 2000 s 996, pp. 1007–8; see also E Møse (n 24), 363–7; and E Bjørge (n 222) 48–49.
240 Oslo tingrett, TOSLO-2013-103468, 2 June 2014.
241 As it has been in e.g. the cases Johansen v. Norway and the cases concerning art. 4(1) P-7 discussed in 3.1 above.
242 M Andenæs and E Bjørge (n 24), 268–76.
243 See J Aall (n 17), 93.
244 See the discussion below, text accompanying infra ns 251–61.
245 See also the observation by EM Boe (n 108) 414.
246 In this regard, see the more detailed analysis of the (traditional) interpretation methods applied by the Norwegian Supreme Court, including a comparison with the methods applied by the ECtHR: EM Boe (n 108) 413–8; JE Skoghøy (n 224) 514 and 528; and S Bandhol, “Er rettsanvendelsen i EU-domestolen og Menneskerettsdomstolen vesensforskjellig fra norsk rettskildelære?”, (2005) Lov og Rett 316–27, 320–22.
247 See also the discussion by Andenæs and Motzfeldts Kravik in this context, highlighting practice of the Norwegian Supreme Court that points into this direction: M Andenæs and A Motzfeldt Kravik (n 189) 579–99.
248 This possibility can be observed e.g. in the Norwegian Supreme Court’s jurisprudence on art. 4(1) P-7 and the subsequent Zolotukhin judgment by the ECtHR as discussed above.
249 This is for example the case in Germany with its well-developed body of constitutional law established by the German Constitutional Court.
250 That the protection of human rights in the ECHR and other international human rights treaties ratified by Norway goes beyond the rights protected in the Norwegian Constitution is recognised in the literature. Concerning the right to the respect for private and family life see e.g. the analysis by AP Høgberg and N Høstmælingen, “Grunnlovsfesting av retten til privatliv?” (2010) 45(2) Jussens Venner 98–146; and, more generally, B Moltmyr Høgberg, “Strekker EMKs inividvern seg utover det vern som følger av tilsvarende bestemmelser i grunnloven?”, (2010) 45(1) Jussens Venner 68–84; O Wiklund (n 24), 174; and A Kierulf (n 31), p.25.
251 The Norwegian Supreme Court has a relatively strong tradition of reviewing executive and legislative action for their conformity with the Norwegian Constitution. See B Tønder, “The Control of the Legislative and Executive Power by Norwegian Courts”, May 2014, available online at http://www.domstol.no/no/Enkelt-domstol/-Norges-Hoyesterett/Om-Hoyesterett/Artikler-med-mer/Artikkel-i-polsk-tidsskrift-engelsk/.
252 See e.g. the debate between Jens Elo Rytter and Jørgen Steen Sørensen: J Elo Rytter, “Dansk-europæisk menneserettighedsbeskyttelse – om en forfatningsretlig revolution” (2010) 6/7 Juristen 187–; J Steen Sørensen, “Danske domstoles fortolkning af Den Europæiske Menneskerettighedskonvention – en kommetar til professor, ph.d. Jens Elo Rytter” (2010) 9 Juristen 251–259; J Elo Rytter, “Danske domstolens fortolkning af Den Europæiske Menneskerettighedskonvention – en replik til rigsadvokat Jørgen Steen S__rensen” (2010) 9 Juristen 260–; and J Steen Sørensen, “Danske domstoles fortolkning af Den Europæiske Menneskerettighedskonvention – den duplik til professor, ph.d. Jens Elo Rytter” (2010) 10 Juristen 309–310.
253 Exceptions are TV Vest & Rogaland Pensjonisparti v. Norway, judgment, app. no. 21132/05, 11 December 2008, paras. 70–78; and Lindheim & Others v. Norway (n 114) paras. 128–34.
254 On this, see the discussion by J Aall (n 17), 94–97; and generally, EM Boe, Grunnleggendejuridiskmetode (Oslo: Universitetsforlaget, 2012, 3rd ed), 137–39.
255 See e.g. the judgment of the Norwegian Supreme Court (para. 38) cited in K.T. v. Norway, para. 36; and in Bernh Larsen Holding AS & Others v. Norway, judgment, app. no. 24117/08, 14 March 2013, paras. 40–41 (majority opinion) and paras. 58–59 (minority opinion) where the majority and minority opinions did not entirely agree on the clarity and purpose expressed in parliament’s preparatory work; B Tønder (n 251) F Arnesen and A Stenvik (n 145) 100–1, and EM Boe (n 108) 137–39.
256 F Arnesen and A Stenvik (n 145) 89–109; the Supreme Court’s judgment (paras. 25/26) cited in Egeland & Hanseid v. Norway, judgment, app. no. 34438/04, 16 April 2009, para. 18. This approach has been approved of by the ECtHR, see Lindheim & Others v. Norway (n 114) para. 128.
257 See B Tønder (n 251).
258 See e.g. the Norwegian Supreme Court’s argumentation cited in Bernh Larsen Holding AS & Others v. Norway, judgment, app. no. 24117/08, 14 March 2013, paras. 51–52; F Arnesen and A Stenvik (n 145) 104–5; and B Tønder (n 251).
259 See F Arnesen and A Stenvik (n 145) 104–5. Some of the problems highlighted by Sørensen (2010), in his comments J Steen Sørensen, “Danske domstoles fortolkning af Den Europæiske Menneskerettighedskonvention – en kommentar til professor, ph.d. Jens Elo Rytter” (2010) 9 Juristen 251–261, (255–56) on Rytter’s observations could possibly be addressed by the Danish Supreme Court through taking a similar approach as the Norwegian Supreme Court when using the preparatory works of the parliament. Other problems would need legislative intervention to be solved, as the status of the Convention seems to be different in Danish law from Norwegian law.
260 See e.g. Glien v. Germany, judgment, app. no. 7345/12, 28 November 2013, para. 124 (for a context other than “evolutive” interpretation by domestic courts).
261 However, an analysis of the details of the Norwegian Supreme Court’s approach to balance its respect for the opinion of the legislative with the need to interpret the Convention “evolutively”, also from a comparative perspective, could not be conducted here, as it would require a more systematic engagement with the jurisprudence of Norwegian courts that goes beyond the scope of this article. This analysis has to be left for future research.
262 See the relevant judgment of the Norwegian Supreme Court cited in TV Vest & Rogaland Pensjonistparti v. Norway, app. no. 21132/05, 11 December 2008, para. 20 (paras.61 and 65 of the judgment of the Norwegian Supreme Court (Rt. 2004 s. 1737, 12 November 2004, HR 2004-01889-A)).
263 See the relevant judgment of the Norwegian Supreme Court cited in TV Vest & Rogaland Pensjonistparti v. Norway, app. no. 21132/05, 11 December 2008, this is also done by other apex courts in member states of the CoE. For example in Stübing v. Germany, in the course of the domestic proceedings before the German Constitutional Court an expert report had been prepared, containing a comparative analysis of whether incest was criminalised in different member states of the CoE. Stübing v. Germany, app. no. 43547/08, 12 April 2012, paras.19 and 33.
264 See J Aall (n 17) 93.
265 See part 2.1 above.
266 See part 2.2 above.
267 In some areas, the ECtHR has developed these “encouragements” into obligations under the ECHR. See the text accompanying supra ns 117–19.
268 See the suggestions addressing the ECtHR in part 3.2.
269 See parts 3.1 above.
270 See the suggestions made in part 3.2 in this regard.
271 See the discussion in part 2.3 above.
272 See the discussion in part 3.2 above.