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Abstract
Starting from the recognition that European human rights law develops bottom-up through the practice of democratic national authorities, this contribution analyses domestic authorities’ substantive and procedural obligations to ‘secure’ the rights of the European Convention on Human Rights (ECHR), and in particular the extent to which the dynamic elements of these obligations have been consolidated through European Court of Human Rights’ (ECtHR) jurisprudence. To this end, it initially disaggregates the obligations addressing parliaments and domestic courts respectively to respect, protect and fulfil convention rights in light of present-day conditions. It subsequently examines how domestic courts and parliaments should effectively interact to secure ECHR rights in an up-to-date manner. Then, it analyses how the ECtHR ‘communicates’ these obligations to domestic authorities by relying on the principle of subsidiarity/margin of appreciation. Overall, the contribution enhances our understanding of how domestic authorities should secure the rights of the convention in circumstances of change (‘co-develop’ the law of the convention), and how the ECtHR can promote domestic authorities’ engagement with the convention towards this end.
Acknowledgements
The author would like to thank Nino Tsereteli and the two anonymous reviewers of the International Journal of Human Rights for their helpful comments on earlier versions of this contribution.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Amrei Müller is currently a post-doctoral fellow at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Faculty of Law, University of Oslo.
Notes
1. Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005, 4 November 1950.
2. On the ‘living’ character of the International Covenant on Civil and Political Rights (ICCPR) see, for example, UN Human Rights Committee, Judge v. Canada, Communication No. 829/1998, 5 August 2002, UN Doc. CCPR/C/78/D/829/1998, para. 10.3; on the International Convention on the Elimination of All Forms of Racial Discrimination, see UN Committee against Racial Discrimination, Hagan v. Australia, Communication No. 26/2002, 20 March 2003, UN Doc. CERD/C/61/D/26/2002, para. 7.3; and the Inter-American Court of Human Rights on the American Convention on Human Rights, Advisory Opinion OC-19/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, 14 July 1989, Series A, No. 10, para. 37.
3. Among many, see Tyrer v. UK, Judgment (Chamber), Appl. No. 5856/72, 25 April 1978, para. 31; and Svinarenko and Slyadnev v. Russia, Judgment (Grand Chamber), Appl. Nos 32541/08 and 43441/08, 17 July 2014, para. 138, reiterating that the provisions of the convention need to be applied so as to make its safeguards ‘practical and effective’. See also the overview by Alastair Mowbray, ‘Between the Will of the Contracting Parties and the Needs of Today’, in Shaping the Rights in the ECHR, ed. Eva Brems and Janneke Gerards (Cambridge: Cambridge University Press, 2014), 17–37.
4. See, for example, Alastair Mowbray, ‘The Creativity of the European Court of Human Rights’, Human Rights Law Review 5 (2005): 57; Mowbray, ‘Between the Will’; Mikael Rask Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’, in The European Court of Human Rights between Law and Politics, ed. Jonas Christoffersen and Mikael Rask Madsen (Oxford: Oxford University Press, 2011); Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge: Cambridge University Press, 2015). A notable exception is Eirik Bjørge, ‘National Supreme Courts and the Development of ECHR Rights’, International Journal of Constitutional Law 9 (2011): 5.
5. Article 1 ECHR.
6. Samantha Besson, ‘Subsidiarity in International Human Rights Law – What is Subsidiary about Human Rights?’, The American Journal of Jurisprudence 61 (2016): 69; Samantha Besson, ‘Human Rights and Constitutional Law. Patterns of Mutual Validation and Legitimation’, in Philosophical Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao, and Massimo Renzo (Oxford: Oxford University Press, 2015), 280–99; Samantha Besson, ‘The Egalitarian Dimension of Human Rights’, Archiv für Sozial- und Rechtsphilosophie Beiheft 136 (2012): 19; Samantha Besson, ‘The “Erga Omnes” Effect of Judgments of the European Court of Human Rights – What’s in a Name?’, in La Cour européenne des droits de l’homme après le Protocole 14: premier bilan et perspectives, ed. Samantha Besson (Zurich: Schulthess, 2011), 125–75.
7. Due to space constraints, the full justifications for this account cannot be repeated here.
8. Besson, ‘Subsidiarity’, 100; and Besson, ‘Human Rights and Constitutional Law’.
9. ECHR, preamble; and confirmed in ECtHR jurisprudence, for example, Refah Partisi (the Welfare Party) and Others v. Turkey, Judgment (Grand Chamber), Appl. Nos 41340/98 et al., 13 February 2003, para. 86.
10. See for example, Van de Hurk v. Netherlands, Judgment (Chamber), Appl. No. 16034/90, 19 April 1994, paras 44–55; Stran Greek Refineries and Stratis Andreadis v. Greece, Judgment (Chamber), Appl. No. 13427/87, 9 December 1994, para. 49; and Gorraiz Lizarraga v. Spain, Judgment (Chamber), Appl. No. 62543/00, 27 April 2004, paras 62–73. David Kosar, ‘Policing the Separation of Powers: A New Role for the European Court of Human Rights?’, European Constitutional Law Review 8 (2012): 33.
11. As is clear from Articles 6, 13 and 35(1) ECHR.
12. Besson, ‘Subsidiarity’, 96; and Besson, ‘Human Rights and Constitutional Law’, 295–6.
13. Besson, ‘Subsidiarity’, 101; and Besson, ‘The ‘Erga Omnes’ Effect’.
14. Flowing from Article 1 ECHR.
15. In line with Article 53 ECHR.
16. This is made explicit in regard to the discharging of negative obligations: any restriction of a convention right has to be ‘determined by law’ (for example, Articles 8(2)–11(2)).
17. Articles 6, 13 and 35(1) ECHR.
18. ECHR, preamble; and references to a ‘democratic society’ in Articles 6(1) and 8(2)–11(2) ECHR.
19. This arguably flows from the characteristics of a democratic system of which the separation of powers doctrine is an integral part, see notes 9 and 10.
20. Due to space constraints and the fact that the ECtHR in its case law frequently addresses the relationship between the legislature and the judiciary, this contribution concentrates on the relationship among the latter when obligation (c) is discussed.
21. Besson, ‘Subsidiarity’, 100.
22. Besson, ‘Human Rights and Constitutional Law’, 280.
23. The obligations under the convention in general and under Article 1 ECHR in particular are binding on all branches of government. This has been recognised by the ECtHR (see sections 2.1 and 2.2) and the CoE’s Parliamentary Assembly (PACE), in PACE Resolution 1823 (2011), 23 June 2011. It is furthermore supported by Articles 26 and 27 of the Vienna Convention on the Law of Treaties (VCLT). This has been pointed out by the UN Human Rights Committee in its General Comment No. 31 – The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13, 26 May 2004, paras 3 and 4. See also the analysis by Bertrand Ramcharan, ‘The National Responsibility to Protect Human Rights’, Hong Kong Law Journal 39 (2009): 361, 369.
24. ECHR preamble, para. 4.
25. See, for example, K.U. v. Finland, Judgment (Chamber), Appl. No. 2872/02, 2 December 2008, para. 49; Young, James and Webster v. UK, Judgment (Plenary), Appl. Nos 7601/76 and 7806/77, 13 August 1980, para. 49; Lukenda v. Solvenia, Judgment (Chamber), Appl. No. 23032/02, 6 October 2005, findings of the court, para. 5; and Vlad and Others v. Romania, Judgment (Chamber), Appl. Nos 40756/06 et al., 26 November 2013, findings of the court, para. 6; and PACE Resolution 1823 (2011), para. 2.
26. This obligation is generally regarded as a ‘positive’ obligation flowing from the convention. See the analysis by Laurens Lavrysen, ‘Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect ECHR Rights’, in Human Rights and Civil Liberties in the 21st Century, ed. Eva Brems and Yves Haeck (Berlin: Springer, 2014), 92; and Keir Starmer, ‘Positive Obligations under the Convention’, in Understanding Human Rights Principles, ed. Jeffrey Jowell and Jonathan Cooper (Oxford: Hart Publishing, 2001), 147 et. seq. However, also the discharging of ‘negative’ obligations to respect ECHR rights requires states to adopt domestic legislative measures, for example, to determine the extent of limitations to ECHR rights ‘by law’ (cp. Articles 8–11(2) ECHR).
27. This is made explicit in the convention articles obliging states to restrict rights only in so far as these restrictions are ‘prescribed by law’ (Articles 8(2)–11(2) ECHR).
28. Lavrysen, ‘Protection by the Law’, 86 and 89–90.
29. See, for example, James and Others v. UK, Judgment (Plenary), Appl. No. 8793/79, 21 February 1986, paras 84–6; Holy Monasteries v. Greece, Judgment (Chamber), Appl. Nos 13092/87 and 13987/88, 9 December 1994, para. 90; McCann and Others v. UK, Judgment (Grand Chamber), Appl. No. 18984/91, 27 September 1995, para. 153; and Christine Goodwin v. UK, Judgment (Grand Chamber), Appl. No. 28957/95, 11 July 2002, para. 113. See also David Harris et al. ed., The Law of the European Convention on Human Rights, 2nd ed. (Oxford: Oxford University Press, 2009), 23–4.
30. Lavrysen, ‘Protection by the Law’, 92.
31. For example, Z v. Finland, Judgment (Chamber), Appl. No. 22009/93, 25 February 1997, para. 95; Craxi v. Italy (No. 2), Appl. No. 25337/95, 17 July 2003, para. 74; S. and Marper v. UK, Judgment (Grand Chamber), Appl. Nos 30562/04 and 30566/04, 4 December 2008, para. 103; and Oršuš and Others v. Croatia, Judgment (Grand Chamber), Appl. No. 15766/03, para. 157.
32. For a more detailed analysis of the obligations to adopt domestic law to respect, protect and fulfil ECHR rights see Amrei Müller, ‘Obligations to “Secure” the Rights of the Convention in an “Effective Political Democracy” – How Should Parliaments and Domestic Courts Interact?’, in Parliaments and the International Human Rights Judiciary, ed. Matthew Saul (Cambridge: Cambridge University Press, forthcoming 2017).
33. But see Lavrysen, ‘Protection by the Law’, 85–125; and Müller, ibid.
34. This is also observed by Lavrysen, ibid., 93, but not elaborated on in detail.
35. Sometimes the court addresses domestic parliaments directly (see, for example, S.H. v. Austria, Judgment (Grand Chamber), Appl. No. 37452/02, 7 July 2011, paras 116–17); in other cases, the court generally addresses the contracting or respondent state (see, for example, Stummer v. Austria, Judgment (Grand Chamber), Appl. No. 37452/02, 7 July 2011, para. 110) and thereby the legislature in a more indirect manner.
36. Stummer v. Austria, paras 99 and 105.
37. S.H. and Others v. Austria, para. 103.
38. See the overview given by Mowbray, ‘Between the Will’, 20–35.
39. Stummer v. Austria, para. 110; S.H. and Others v. Austria, para. 118.
40. Stummer v. Austria, para. 99.
41. S.H. and Others v. Austria, para. 117.
42. For example, Rees v. UK, Judgment (Plenary), Appl. No. 9532/81, 17 October 1986, para. 47; and the subsequent cases of Cossey v. UK, Judgment (Plenary), Appl. No. 10843/84, 27 September 1990, para. 42; Sheffield and Horsham v. UK, Judgment (Court), Appl. Nos 22985/93 and 23390/94, 30 July 1998, para. 60; recalled in I v. UK, Judgment (Grand Chamber), Appl. No. 25680/94, para. 72; and Grant v. UK, Judgment (Chamber), Appl. No. 32570/03, 23 May 2006, para. 39. See also, Jones and Others v. UK, Judgment (Chamber), Appl. Nos 34356/06 and 40528/06, 14 January 2014, para. 215; and Shindler v. UK, Judgment (Chamber), Appl. No. 19840/09, 7 May 2013, para. 115.
43. See, for example, Rees v. UK, para. 47; Cossey v. UK, para. 42; Sheffield and Horsham v. UK, para. 60.
44. Storck v. Germany, Judgment (Chamber), Appl. No. 61603/00, 16 June 2005, para. 93; see also Fabris v. France, Judgment (Grand Chamber), Appl. No. 16574/08, 7 February 2013, para. 72.
45. This is in line with absence of an obligation on states to incorporate the ECHR into their domestic law, see note 29.
46. In line with Article 53 ECHR.
47. See judgments cited in note 44. This is also in line with the court regularly commending domestic courts for applying domestic law in light of the convention, for example, Bazutov v. Germany, Decision (Chamber), Appl. No. 17603/0722, May 2012; von Hannover v. Germany (No. 2), Judgment (Grand Chamber), Appl. Nos 40660/08 and 60641/08, 7 February 2012, para. 107; and MGN Limited v. UK, Judgment (Chamber), Appl. No. 39401/04, 18 January 2011, paras 150 and 155. In the latter two cases, this conduct of domestic courts is linked also to the court choosing a light standard of review.
48. See generally the analysis by Bjørge, ‘National Supreme Courts’, 9–13.
49. As mentioned in section 2.1.
50. For example, Heinisch v. Germany, Judgment (Chamber), Appl. No. 28274/08, 21 July 2011, paras 72–3, where the ECtHR used earlier decisions of the German Constitutional Court and the Federal Labour Court to advance and clarify some aspects of the protection of whistle-blowers in its jurisprudence. See also Vinter and Others v. UK, judgment (Grand Chamber), Appl. Nos 66069/09 et al., 9 July 2013, where the ECtHR took on the (evolutionary) judgments of the German Constitutional Court (paras 69–71) and the Italian Constitutional Court (para. 71) to find that there was a European consensus on the question concerning the principle that all prisoners, including those serving life sentences, ‘should be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved’ (para. 114).
51. Fabris v. France, paras 72 and 75; Karner v. Austria, Judgment (Chamber), Appl. No. 40016/98, 24 July 2003, paras 39 and 42; and more indirectly, Bayatyan v. Armenia, Judgment (Grand Chamber), Appl. No. 23459/03, 7 July 2007, para. 108; Christine Goodwin v. UK, Judgment (Grand Chamber), Appl. No. 28957/95, 11 July 2002, paras 100–2; and Konstantin Markin v. Russia, Judgment (Grand Chamber), Appl. No. 30078/06, 22 March 2012, paras 131–52 (where the government relied on many arguments made by the Russian Constitutional Court).
52. See Bjørge’s analysis, ‘National Supreme Courts’, 9–11, of Van Kück v. Germany, Judgment (Chamber), Appl. No. 35968/97, 12 June 2003, Goodwin v. UK, Judgment (Grand Chamber), Appl. No. 28957/95, 6 October 2002, and Grant v. UK; as well as of E.B. v. France, Judgment (Grand Chamber), Appl. No. 43546/97, 22 January 2008 and Frette v. France, Judgment (Chamber), Appl. No. 36515/97, 26 February 2002. This implies that the ECtHR’s judgments can have ex tunc effects.
53. Ibid., 9, 13 and 30.
54. For example, Leyla Şahin v. Turkey, Judgment (Grand Chamber), Appl. No. 44774/98, 10 November 2005, para. 121; X. v. UK, Judgment (Chamber), Appl. No. 7215/75, 5 November 1981, para. 43; and Maurice v. France, Judgment (Grand Chamber), Appl. No. 11810/03, 6 October 2005, para. 117.
55. See the analysis in section 2.1.
56. Joint partly dissenting opinion of Judges Tulkens, Kovler, Gyulumyan, Spielmann, Popovic, Malinverni and Pardalos to Stummer v. Austria, para. 9 (emphasis added).
57. Ibid. (emphasis added). See also the other judgments cited in notes 51 and 52, establishing this requirement implicitly.
58. See, for example, Stübing v. Germany, Judgment (Chamber), Appl. No. 43547/08, 12 April 2012, paras 30 and 61; and TV Vest and Rogaland Pensjonistparti v. Norway, Judgment (Chamber), Appl. No. 21132/05, 11 December 2008, para. 20.
59. For a more general analysis of ECtHR jurisprudence concerning these questions, going beyond the dynamic elements of these obligations, see Müller, ‘Obligations to “Secure”’.
60. See also other judgments that cannot be discussed here in detail: Konstantin Markin v. Russia, paras 114, 127 and 139–43; Anchugov and Gladkov v. Russia, Judgment (Chamber), Appl. Nos 11157/04 and 15162/05, 4 July 2013, paras 103 and 109; and the dissenting opinion to Stummer v. Austria, directly pointing to the fact that legislation was dated. It should be noted, however, that the court’s jurisprudence is not entirely consistent on this matter, see for example, Stübing v. Germany, para. 65.
61. Hirst v. UK (No. 2), Judgment (Grand Chamber), Appl. No. 74025/01, 6 October 2005.
62. The history of the impugned Peoples Act is summarised in Hirst v. UK (No. 2), para. 22; see also the submission by third-party interveners in the case summarised in paras 53 and 54 of the judgment.
63. Ibid., para. 80.
64. Ibid., para. 79.
65. Ibid., paras 78–80.
66. Karner v. Austria, paras 15, 39 and 42.
67. Ibid., para. 42.
68. Ibid., para. 36.
69. Ibid., para. 38. The lower court’s decision was overturned by the Supreme Court.
70. If this has not been the case, the court is unlikely to accept domestic courts’ uncritical deference to parliamentary decisions/intentions. See, for example, X. and Others v. Austria, Judgment (Grand Chamber), Appl. Nos 19010/07 and 19010/07, 19 February 2013, paras 115–16; and Lindheim v. Norway, Judgment (Chamber), Appl. Nos 13221/08 and 2139/10, 12 June 2012, paras 128 and 134.
71. Animal Defenders International v. UK, Judgment (Grand Chamber), Appl. No. 48876/08, 22 April 2013.
72. Ždanoka v. Latvia, Judgment (Grand Chamber), Appl. No. 58278/00, 16 March 2006; see also Petrovic v. Austria, Judgment (Chamber), Appl. No. 20458/92, 27 March 1998, paras 39–43; Friend and Others v. UK, Decision (Chamber), Appl. Nos 16072/06 and 27809/08, 24 November 2009, paras 25 and 59.
73. Animal Defenders International v. UK, para. 115; similarly, see Evans v. UK, Judgment (Grand Chamber) Appl. No. 6339/05, 10 April 2007, paras 86–9.
74. Ždanoka v. Latvia, para. 134. It can be noted that the Ždanoka judgment does not involve questions of evolutive interpretation of the ECHR affecting all member states of the CoE. Rather, the case concerned Latvia’s temporary non-compliance with the minimum standard of protection required under Article 3 P-I due to historical reasons. However, the court’s expectations on domestic courts and parliaments to periodically review whether such temporary non-compliance remains justified in this case is similar to its expectations in cases concerning issues affected by changing social circumstances or technological developments (that is, cases involving evolutionary interpretation ‘proper’).
75. Sometimes this is impossible due to limits set to domestic courts’ powers by the domestic constitutional framework. See, for example, Oliari and Others v. Italy, Judgment (Chamber), Appl. Nos 18766/11 and 36030/11, 21 July 2015, paras 43–5 and 184.
76. As summarised in Fabris v. France, paras 27–32.
77. Kozak v. Poland, Judgment (Chamber), Appl. No. 13102/02, 2 March 2010, paras 40–7.
78. Bayatyan v. Armenia, paras 44–5 and 107.
79. Fabris v. France, paras 58, 69, 72 and 79.
80. Kozak v. Poland, paras 96–9.
81. Bayatyan v. Armenia, para. 108.
82. Fabris v. France, para. 69; Bayatyan v. Armenia, para. 127.
83. Christine Goodwin v. UK, paras 82 and 92.
84. Among many see X and Others v. Austria, Judgment (Grand Chamber), Appl. No. 19010/07, 19 February 2013, para. 148; Dudgeon v. UK, Judgment (Plenary), Appl. No. 7525/76, 22 October 1981, para. 41; Christine Goodwin v. UK, para. 90; Pretty v. UK, Judgment (Chamber), Appl. No. 2346/02, 29 April 2002, para. 71; and Kozak v. Poland, para. 92.
85. In this context, the ECtHR often refers to the mismatch between ‘social reality and [domestic] law’ (Christine Goodwin v. UK, para. 77). See also I. v. UK, para. 58; Hämäläinen v. Finland, Judgment (Grand Chamber), Appl. No.37359/09, 16 July 2014, para. 66; and Oliari v. Italy, paras 161 and 173.
86. See, for example, the (unsuccessful) attempts of the Italian Constitutional Court in this regard summarised in Oliari v. Italy, paras 43–5 and 184; and lower Turkish courts in Demir and Baykara v. Turkey, Judgment (Grand Chamber), Appl. No. 34503/97, 21 November 2008, para. 125.
87. See, for example, X and Others v. Austria, para. 99; E.B. v. France, para. 91; Kozak v. Poland, para. 92; Karner v. Austria, paras 37 and 42; and Smith and Grady v. UK, Judgment (Chamber), Appl. Nos 33985/96 and 33986/96, 25 July 2000, para. 90 (all concerning discrimination on grounds of sexual orientation); Konstantin Markin v. Russia, para. 127 and Burghartz v. Switzerland, Judgment (Chamber), Appl. No. 16213/90, 22 February 1994, para. 27 (discrimination based on sex); and Fabris v. France, para. 58 (discrimination between legitimate and illegitimate children).
88. X and Others v. Austria, para. 137.
89. Ibid., paras 115 and 142. Section 8(4) of the Austrian Registered Partnership Act that entered into force on 1 January 2010 explicitly prohibited the adoption of one registered partner’s child by the other partner.
90. Ibid., para. 142.
91. See, for example, judgments listed in note 87. Note, however, that the ECtHR does not in all judgments address the relationship between domestic courts and parliaments explicitly.
92. For example, S.H. and Others v. Austria, para. 94; Ahrens v. Germany, Judgment (Chamber), Appl. No. 45071/09, 22 March 2012, para. 68; Evans v. UK, Judgment (Grand Chamber), Appl. No. 6339/05, para. 77; X, Y and Z v. UK, Judgment (Grand Chamber), Appl. No. 21830/93, 22 April 1997, para. 44; and Stübing v. Germany, para. 60.
93. For example, S.H. and Others v. Austria; Evans v. UK; Stübing v. Germany; and Fretté v. France, paras 41–2.
94. Ždanoka v. Latvia, para. 134; Animal Defenders International v. UK, paras 111 and 115, and the concurring opinion of the then British Judge Sir Nicolas Bratza, para. 12.
95. Ahrens v. Germany, para. 71.
96. Ibid., paras 68–70. For judgments showing a similar pattern, see note 92.
97. This is clear also from the ECtHR’s jurisprudence: for example, Zaunegger v. Germany, Judgment (Chamber), Appl. No. 22028/04, 3 December 2009; and Anayo v. Germany, Judgment (Chamber), Appl. No. 20578/07, 21 December 2010.
98. Evans v. UK, para. 89–91, supporting UK courts in their decisions not to read exceptions into the UK law that permitted the applicant’s former partner to withdraw his consent to the storage and use by her of embryos created jointly by them, even though the use of these embryos was the only way for the applicant to have genetically related offspring. See also Pretty v. UK; and Animal Defenders v. UK, para. 115.
99. For example, Animal Defenders v. UK; Evans v. UK, para. 86; Friend v. UK, paras 12 and 56.
100. Konstantin Markin v. Russia, para. 114 (when the relevant provision of the Military Service Act had been adopted, Russia had not been member of the convention system yet); and Hirst v. UK (No. 2), para. 79.
101. Animal Defenders International v. UK, para. 115 (see also the UK parliament’s debates summarised in paras 15 and 24 of the judgment).
102. Ahmet Yildirim v. Turkey, Judgment (Chamber), Appl. No. 3111/10, 18 December 2012, para. 66.
103. Ibid., para. 54.
104. Ibid., para. 66 (addressing domestic courts directly).
105. Ibid., para. 31.
106. Oliari v. Italy, paras 180–6; similarly, see Zaunegger v. Germany, para. 58; A, B and C v. Ireland, Judgment (Grand Chamber), Appl. No. 25579/05, 16 December 2010, paras 44 and 258. In other cases, the ECtHR endorsed dissenting domestic judges for the same reason, see, for example, Christine Goodwin v. UK, paras 53 and 82; or lower courts interpreting domestic law progressively, that were later overruled by the higher domestic courts, see, for example, Demir and Baykara v. Turkey, paras 23 and 124; and Karner v. Austria, supra, para. 38.
107. See the judgments cited in note 42.
108. Christine Goodwin v. UK (2002), paras 52 (summarising the House of Lord’s judgment) and 102.
109. Ibid., paras 82, 85 and 100.
110. Ibid., paras 82 and 92.
111. The dissent is summarised ibid., para. 53.
112. Bayatyan v. Armenia, para. 127; see also Demir and Baykara v. Turkey, paras 125–6, for similar patterns; and the dissenting opinion by judges Tulkens, Kovler, Gyulumyan, Spielmann, Popovic, Malinverni and Pardalos to Stummer v. Austria, paras 8 and 9.
113. Konstantin Markin v. Russia, para. 90.
114. Besson, ‘Subsidiarity’, 91.
115. Through variation of its standard of review in accordance with the breadth of the margin of appreciation. On the understanding of the margin of appreciation as an incentive see the speech of the (former) president of the ECtHR, Dean Spielmann, of 20 March 2014. He notes 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’, 12, http://www.echr.coe.int/Documents/Speech_20140320_London_ENG.pdf.
116. See section 2.1 highlighting the statements of the ECtHR where it criticised parliaments and courts for ineffective cooperation in discharging their obligation to co-develop the rights of the convention.
117. Bayatyan v. Armenia, paras 121–3; Christine Goodwin v. UK, paras 92–3, where the court first criticises the inaction of the domestic legislator and the courts for not taking action to effectively protect the rights of transsexuals in light of present-day conditions (para. 92), and then moves on to observe that in these circumstances, the government can no longer claim that the ‘matter falls within their margin of appreciation’ (para. 93); and X and Others v. Austria, paras 99 and 140.
118. In Ždanoka v. Latvia, para. 134 (emphasis added), the ECtHR observed: ‘both legislative and judicial, are better placed to assess the difficulties faced in establishing and safeguarding the democratic order. Those authorities should therefore be left sufficient latitude to assess the needs of their society in building confidence in the new democratic institutions … In this respect, the Court also attaches weight to the fact that the Latvian parliament has periodically reviewed section 5(6) of the 1995 Act, most recently in 2004. Even more importantly, the Constitutional Court carefully examined, in its decision of 30 August 2000, the historical and political circumstances which gave rise to the enactment of the law in Latvia, finding the restriction to be neither arbitrary nor disproportionate at that point in time, that is, nine years after the events in question.’ Animal Defenders International v. UK, para. 108. No explicit connections are made in Evans v. UK .
119. Evans v. UK, para. 81; Animal Defenders International v. UK, para. 123; Ždanoka v. Latvia, paras 121, 134 and 135.
120. Evans v. UK, paras 59 and 79–81; and Animal Defenders International v. UK, para. 123.
121. Ždanoka v. Lativia, paras 134–5.
122. Evans v. UK, paras 86 and 89.
123. See the analysis by Eva Brems and Laurens Lavrysen, ‘Procedural Justice in Human Rights Adjudication: the European Court of Human Rights’, Human Rights Quarterly 35 (2013): 182, 195–8. In addition to the jurisprudence they analyse, see also Shturakturov v. Russia, Judgment (Chamber), Appl. No. 44009/05, 27 March 2008, para. 89.
124. Lavrysen, ‘Protection by the Law’, 126–7, including examples of cases where the ECtHR made the connection explicit between the breadth of the margin and the extent to which domestic authorities have adopted legal measures to safeguard the rights of the convention.
125. See judgments cited in notes 39 and 42.