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Between 'Res Judicata' and 'Orientierungswirkung – ECHR Judgments Before National Courts

Brno , 

Statement by
Mr Jörg POLAKIEWICZ

Director of Legal Advice and Public International Law
Council of Europe

 

Mr President,

Excellencies,

Ladies and Gentlemen,

Your conference gives me the opportunity to revisit my doctoral thesis ‘The Obligations of States Arising from the Judgments of the European Court of Human Rights’, published 25 years ago.[1] I would like to dedicate my intervention to the supervisor of my thesis, Prof. Jochen Abraham Frowein.[2]

Speaking in Brno, the seat of the Czech Supreme, Supreme Administrative and Constitutional Courts, it is rather natural to approach the topic of binding effects of ECHR decisions from the angle of domestic law. More concretely, I would like to examine what are the obligations of national courts when faced with ECHR judgments finding Convention violations.

When I wrote my thesis in Heidelberg, we lived in a different century, in a different Europe. From 1986 to 1990, the ECtHR had delivered an average of 26 judgments per year. Until 1 January 1990, altogether 235 judgments had been rendered.

Today, the Convention’s scope of application comprises the whole of Europe and the ECtHR delivers an average of more than 1,000 judgments per year. The issue of the binding force of ECHR judgments and their execution is therefore more relevant than ever.

Although the Convention does not contain a provision which would confer an immediate legal effect upon the judgments of the Court in domestic law, it leaves no doubt about their binding force. Under article 46 (1) ECHR, the respondent state is under an obligation to comply with all the consequences of a judgment. Applying general principles of state responsibility, my thesis argued that the respondent state is under an obligation to

(1) discontinue the wrongful act,

(2) to provide full reparation for all its consequences as far as this is possible under its domestic law and

(3) to provide satisfaction including appropriate guarantees against repetition of the wrongful act.

The most fascinating part of my thesis was the attempt to make these rather abstract concepts of international state responsibility operational for the daily practice of judges and prosecutors. The writing of a doctoral thesis stands - to paraphrase Karl Marx - in the same relation to the application of the law in concrete cases, as masturbation to sexual love.

In the first place, ECHR judgments deploy res judicata’ effects. When examining their effects in domestic law, it is necessary to make a distinction between two types of judgments:

  • Firstly, there are declaratory judgments as to whether a certain state action (or omission) constitutes a Convention violation.
  • Secondly, under article 41 ECHR, the ECtHR may award “just satisfaction” to the applicant. The latter usually takes the form of pecuniary compensation for material and moral damages as well as for costs and expenses incurred before the Convention institutions.

Contrary to the declaratory part of ECHR judgments, the payment of just satisfaction is precise and unconditional. It usually does not give rise to particular problems.

According to a famous saying ‘hard cases make bad law’. Nevertheless, I cannot refrain from mentioning in this context the rather extraordinary case of Yukos.[3] In a judgment of 20 September 2011, the ECtHR had found violations of article 6 (1) and (3) (b) ECHR. The ECtHR awarded a total of € 1,866,104,634.

On 19 January 2017, the Russian Constitutional Court concluded that it is impossible to execute the Yukos just satisfaction judgment.[4] In abstracto, the Court acknowledged that nonexecution should be reserved for exceptional cases of an outright “collision” between the Russian constitution and the Convention which can arise “as result of an interpretation [made by the ECtHR] in violation of the general rule of treaty interpretation”, such as a wholly novel and unsustainable interpretation of the Convention, which departed from the ‘jus cogens’ principles of treaty interpretation, or was inconsistent with the Convention’s object and purpose. In concreto, however, the Court effectively reconsidered issues decided by the ECtHR in the Yukos merits judgment.

Indeed, whatever one may think about the reasoning developed in this judgment or the pertinence of the findings, it is difficult to argue that they are not covered by the authority of ‘res judicata’. Under international law, this authority attaches not only to the dispositif but covers also elements of the reasoning, at least in so far as they have been determined “expressly or by necessary implication” in the judgment in question.[5]

The Russian Constitutional Court concluded its judgment on a conciliatory note: “Proceeding on the basis of the fundamental importance of the European system of protection of human rights and freedoms, part of which is constituted by European Court of Human Rights judgments”, it suggested as “a compromise for the sake of maintaining this system” that the Russian authorities might consider paying worthy former shareholders in Yukos unspecified compensations, provided that any such payment did not come from the Russian budget, or property or assets of the Russian Federation.

The Constitutional Court gave a particularly wide interpretation to the legislative provisions which limit its control to the foundations of the Russian constitutional system or the content of constitutional rights. By accepting that constitutional rights of other individuals may be restricted by general state acts such as the payment of compensation out of the state budget, the Constitutional Court assimilates public interests with the constitutional rights of the community, thus creating for itself an almost unlimited opportunity to examine whether ECHR judgments are executable in Russia.

When reading the Yukos judgment of the Russian Constitutional Court, I was reminded of paragraph 13 of the English summary of my thesis: “The judgments in which the Court awards just satisfaction under Art.50 [now 41] ECHR constitute an unconditional obligation to pay the specified amount of money to the applicant.[6]

I would argue that this summary still represents the general law, a point of view confirmed by the Committee of Ministers’ decisions adopted on 10 March 2017 in the context of the supervision of execution of the Yukos judgment[7] and the opinion of the Venice Commission on the amendments to the Federal Constitutional Law on the Constitutional Court.[8]

As to the obligations arising from the declaratory parts of ECHR judgments, the ECtHR identified them for the first time explicitly in 1995 in the case of Papamichalopolous v. Greece:

“… a judgment in which the Court finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.[9]

The Court has repeated and developed these principles in numerous judgments, thereby largely confirming the ideas developed in my thesis. As indicated above, the resulting obligations are, at least in principle, ‘obligations of result’. States parties enjoy a certain freedom of choice or ‘margin of appreciation’ as to the means of fulfilling their obligations under article 46 (1) ECHR.

The binding force of declaratory judgments covers in most cases only the Convention violation found in a concrete case, i.e. the application of a law to the applicant and not the law as such. In individual applications, the ECtHR reviews only exceptionally the compatibility of statutory provisions with the Convention. This occurs where an in concreto application necessarily involves reaching a conclusion about a particular legislative provision, such as the blanket ban on prisoner voting found in section 3 of the UK’s Representation of the People Act 1983, which the ECtHR considered to be “a blunt instrument”, “indiscriminate” and “falling outside any acceptable margin of appreciation, however wide that margin might be.[10]

The obligations of cessation and reparation which follow from the finding of a violation are binding on all authorities of the respondent state. Within the ambit of their respective competences, national courts and administrative authorities are required to provide redress for victims of on-going violations and, as far as possible, reparation for past violations. A good example is the recent Tagayeva judgment, where the ECtHR held that “the above found violations should be addressed by variety of both individual and general measures consisting of appropriate responses by the State institutions, aimed at drawing lessons from the past, raising awareness of the applicable legal and operational standards and deterrent new violations of a similar nature.”[11]

In Görgülü (2004), the German Federal Constitutional Court held that all German courts are under an obligation to respect the ‘res judicata’ of ECHR judgments within their respective personal, material and temporal limits.[12] The decision’s clarity in respect of the obligations of domestic courts to respect and implement the ‘res judicata’ of ECtHR judgments stands in contrast to some passages which, albeit obiter dicta, formulate certain limits. These refer to so-called “multipolar fundamental rights situations” and “national partial systems of law shaped by a complex system of case-law”. The Court mentioned as examples German family law, the law concerning aliens, and also the law on the protection of personality.

It must be stressed that both ‘exceptions’ have so far never prevented any German court from complying with a particular ECtHR judgment. The practical importance of these passages should therefore not be exaggerated. The special case of ‘multipolar fundamental rights situations’ is a common feature also before supreme and constitutional courts which, like the ECtHR, usually are confronted in a particular case with only one applicant but still have to weigh the various subjective legal positions at stake.

However, I entirely subscribe to the idea forcefully expressed in this context by the German Federal Constitutional Court that ECHR judgments should never be “schematically” applied by national judges. The Görgülü judgment is a perfect illustration of this point. The ECtHR finding that article 46 ECHR obligations would “[i]n the case at hand …mean[s] making it possible for the applicant to at least have access to his child[13] was in this generality misleading. As in all cases involving children, the best interests of the child as well the complex emotional relations of the child and its foster or adoptive parents call for a comprehensive evaluation of the situation not only from the perspective of the natural father and not only from a legal, but also from a psychological point of view. Such evaluations can only be done by the competent national authorities and their results will necessarily evolve over time.

Immediate redress following an ECHR judgment is required in cases of violations which continue even after the delivery of the ECHR judgment. In such cases article 41 ECHR which effectively shields the domestic legal order from direct effects resulting from ECHR rulings cannot be invoked. States parties to the Convention are under an obligation to stop violations which have been established with binding force.

Even if only the legislator has the power to enact the required new legislation, national courts will act unlawfully if they continue to apply legislation which the ECtHR has held to be contrary to the ECHR, for example by sanctioning legitimate strike action by civil servants, by depriving prisoners of the right to vote or by continuing to discriminate children born out of wedlock.

There are emblematic cases of non-implementation of ECHR judgments. I have already mentioned one of them, the series of judgments rendered in relation to the ban on prisoner voting in the United Kingdom.

The case of Ilgar Mammadov[14] is also paradigmatic. The applicant had reported on his personal internet blog on riots in Ismayilli, a town in Azerbaijan. In its judgment of 22 May 2014, the ECtHR found that there had been violations of articles 5 (1) (c), 5 (4), 6 (2) ECHR. It is one of the rare cases in which the Court also found that the applicant had been subjected to politically motivated prosecution (violation of article 18 ECHR).

The fact that Azerbaijan has so far – for more than three years - failed to execute the judgment risks undermining the credibility of the judicial order that was established in Europe after the Second World War. The Committee of Ministers has adopted three interim resolutions[15] recalling that the obligation to abide by the judgments of the ECtHR is unconditional and insisting that the authorities “take all necessary measures to ensure without further delay Ilgar Mammadov’s release.[16] In December 2016 and June 2017, it adopted decisions repeating that “the continuing arbitrary detention of Ilgar Mammadov constitutes a flagrant breach of the obligations under Article 46, paragraph 1, of the Convention[17] and recalling “their firm determination to ensure the implementation of this judgment by actively considering all the means at the disposal of the Organisation including under Article 46, paragraph 4 of the ECHR.[18]

While member states implemented in 2016 a record high number of cases, there remain some ‘pockets of resistence’.[19] According to the 2016 annual report of the Committee of Ministers on the supervision of the execution of judgments and decisions of the Court, the number of leading cases pending before the Committee for more than five years has increased continuously.[20] The Committee of Ministers attributes implementation difficulties to “important and complex structural problems causing difficulties to identify necessary reforms”, the “absence of a common understanding as to the scope of the execution measures required”, “slow or blocked execution as a result of disagreement between national institutions, or among political parties, as regards the substance of the reform that is required and/or the procedure to be followed” and sometimes even a “refusal to adopt the individual measures required or to pay just satisfaction.”[21]

As regards reparation, the Convention recognises that it will often be impossible for the respondent state to wipe out all the consequences of a judicial decision which has acquired the force of ‘res judicata’. In January 2000, the Committee of Ministers invited states parties to provide for possibilities to re-examine cases, including the re-opening of proceedings, in instances where the ECtHR had found a Convention violation.[22] Today, the vast majority of state parties have adopted special legislation which expressly allows for the possibility to re-open criminal proceedings in the wake of an adverse finding in Strasbourg.

“Orientierungswirkung” (precedent value)

The ECtHR has emphasised consistently that its “judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting States.[23]

The interpretation of a given article, developed by the ECtHR in a series of individual cases, arguably transcends the particular facts of these cases and becomes an integral part of that provision, thus acquiring the same binding force as the provision in question.[24] The Court itself seems to imply that any conditions developed in the case-law stem from the Convention itself and should not be considered as judge-made law.[25] The Czech Constitutional Court acknowledged that “[p]ublic authorities, and primarily the courts, are thus under an obligation to take into account the ECtHR’s jurisprudence in cases in which the Court ruled in the proceedings against the Czech Republic, as well as in cases concerning other States, provided that these cases might be relevant by their nature for the ECHR’s interpretation in the Czech context.[26]

Government experts had the opportunity to discuss the legal effects of interpretations given by the ECtHR during the drafting of ECHR Protocol No 16 on advisory opinions. It was clear from the outset that advisory opinions should not be binding for the requesting court, a rule that was enshrined in Protocol No 16. At the same time, it was acknowledged that interpretations of Convention provisions given by ECHR in such opinions would “form part of the case-law of the Court, alongside its judgments and decisions. The interpretation of the Convention and the Protocols thereto contained in such advisory opinions would be analogous in its effect to the interpretative elements set out by the Court in judgments and decisions.”[27] The principles enunciated in advisory opinions will constitute a record of the interpretation of the Convention by the ECtHR at a particular point in time, arguably carrying particular weight due to the fact that they will systematically be given by the Grand Chamber. As one expert put it, they would be the “salmon of the salmon sandwich.

National judicial and administrative authorities are in any case well advised to take the Strasbourg case-law into account whenever applying the Convention. In the United Kingdom, Lord Bingham enunciated the so-called ‘mirror’ principle: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.[28] The Norwegian Supreme Court has developed a principle for interpretation of the ECHR which in essence provides that national courts shall apply the interpretative method of the ECtHR when dealing with ECHR provisions, bearing in mind that the ECtHR with its European overview is entrusted with the primary task of developing the Convention.

The experience of the German Federal Constitutional Court is particularly rich. According to the Court, the Convention, which formally ranks as an ordinary statute under domestic law, serves as an ‘aid to interpretation’ (“Auslegungshilfe”) of the constitution’s fundamental rights and the rule of law principles. The Federal Constitutional Court has even overruled its own case-law in the light of Strasbourg Court judgments. In M. v. Germany, it held that

 “… the case-law of the European Court of Human Rights has at all events a de facto function of orientation and guidance for the interpretation of the European Convention on Human Rights, even beyond the specific individual case in a decision … The effects in national law of the decisions of the ECtHR are therefore not restricted to a duty to take them into consideration, derived from Article 20 (3) of the Basic Law in conjunction with Article 59 (2) of the Basic Law and limited to the real-world fact situations on which the specific decisions are based, for against the background that the decisions of international courts have at least a de facto effect as precedents, the Basic Law is intended, where possible, to avoid conflicts between the obligations of the Federal Republic of Germany under international law and national law.[29]

The Federal Constitutional Court will soon have an opportunity to revisit the relationship between the Convention and the constitution in a series of cases regarding the right to strike of German civil servants. The German Federal Administrative Court already held that the blanket prohibition which applies also to civil servants is contrary to the ECHR.[30] In that context, it explicitly acknowledged that “[t]he statements made by the ECtHR on the meaning of article 11 (1) and (2) of the ECHR are relevant to the understanding of these rules, since the ECHR has the status of an authentic interpreter of the European Convention on Human Rights.[31] However, in contrast to the case of M. v. Germany, in this case the constitution itself appears to be in contrast with the Convention as interpreted by ECtHR.

The application of rights in concrete cases must take the national context into account, a point underlined by the Czech Constitutional Court in its judgment of 15 November 2006.[32] Such application often requires a sometimes complex balancing exercise, between the rights of one individual and the interests of other individuals, groups or the general public. Fundamental rights are not easily quantifiable in terms of ‘maximum’ versus ‘minimum’ protection. As Ronald Dworkin observed pertinently “it is very difficult to think of liberty as a commodity.”[33] A ‘race to the top’, seeking ever higher standards makes little sense in cases of competing human-rights interests which must be reconciled, such as freedom of expression versus privacy,[34] the right to respect the decision to become (or not to become) a parent,[35] or the property rights of landlords and tenants.

National courts and tribunals are “by reason of their direct and continuous contact with the vital forces of their countries … in principle in a better position than the international judge to give an opinion on the exact content of Convention requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.[36] When it comes to the weighing of rights against each other and public interests, different solutions are tolerable in the context of different legal systems.

It is for the ECtHR to apply the subsidiarity principle, while at the same ensuring that the solutions found at national level remain within the ‘priority principles’ contained in the Convention itself. As Jean-Marc Sauvé observed pertinently, this implies “laisser des marges d’appréciation aux États et à leurs juridictions et de faire preuve d’une certaine réserve dans l’identification des points de consensus entre les traditions constitutionnelles nationales. Cette « respiration » entre principes de primauté et de subsidiarité permettra de faire vivre le projet européen dans la durée.[37]

This brings me to my conclusion.

The probably most innovative part of my 1992 thesis was the conclusion that only by incorporating the Convention into domestic law are national authorities enabled to provide immediate and effective redress for human rights violations found by the ECtHR.[38] Today the Convention is directly applicable in virtually all European states. The ECtHR sets legal standards which influence and shape domestic law and practice as never before.

Issues of compliance have however not faded away.

Having giving individuals the right to challenge decisions that interfere with their inalienable rights before a court that delivers legally binding judgments, which are then enforced collectively through the Committee of Ministers, is a major achievement of European integration.

Especially in a time where the authority of international law is contested and politicians in some countries call for a withdrawal from the Convention, it is more important than ever before that national courts and tribunals uphold ECHR standards.

Being part of the Convention system is not a straight jacket, nor does it undermine the prerogatives of national parliaments. I fully concur with the statement made by the former US Legal Adviser, Professor Harold Koh, speaking at the 2011 İzmir conference on the future of the ECtHR:

All courts face what some call ‘the counter majoritarian difficulty,’ because judicial protection of human rights necessarily challenges electoral majorities and tests governmental outcomes against constitutional standards. But never let it be said that your work is antidemocratic. To the contrary, your work reinforces democracy and promotes the rule of law by guaranteeing free elections, clearing political space for the freedoms of association, expression and religion, combating discrimination, and clearing the channels for political change .[39]

 

* Professor at the Europainstitut of the University of Saarbrücken and Director of Legal Advice and Public International Law (Legal Adviser), at the Council of Europe. The views expressed in this article are those of the author and do not necessarily reflect the official position of the Council of Europe.

[1] Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol. 112 (Springer Heidelberg 1993).

[2] Prof Frowein addressed the effects of the ECHR in domestic law in various publications, see in particular J.A. Frowein ‘Übernationale Menschrechtsgewährleistungen und nationale Staatsgewalt’ in Handbuch des Staatsrechts vol. VII, 2nd edition (1992), § 180; J. A. Frowein ‘Das Bundesverfassungsgericht und die Europäische Menschenrechtskonvention’ in W. Fürst/R. Herzog/C. Umbach (eds.) Festschrift für Wolfgang Zeidler vol. II (1987), 1763 et seq.; J.A. Frowein ‘Der europäische Grundrechtsschutz und die deutsche Rechtsprechung’ NVwZ 21 (2002), 29 et seq.

[3] OAO Neftyanaya Kompaniya Yukos v. Russia, judgment of 20 September 2011, http://hudoc.echr.coe.int/eng?i=002-422 .

[5] ICJ, Genocide Convention Case, Judgment, para. 126. See generally H. Thirlway ‘Judgments of International Courts and Tribunals’ in MPEPIL at paragraph 15.

[6] Verpflichtungen (supra note 1), at 366.

[7] CM/Del/Dec(2017)1280/H46-26, Oao Neftyanaya Kompaniya Yukos v. Russian Federation (Application no. 14902/04).

[9] Papamichalopoulos and Others v. Greece, judgment (Art. 50) of 31.10.1995, Series A no. 330-B, § 34.

[12] Bundesverfassungsgericht, decision of 14.10.2004 (Görgülü), BVerfGE 111, 307, 319 et seq.

[13] Görgülü v. Germany, no. 74969/01, § 64, 26 February 2004.

[14] Ilgar Mammadov v. Azerbaijan, judgment of 22 May 2014, App. No. 15172/13.

[15] Committee of Ministers, Interim Resolution of 12 March 2015, CM/ResDH(2015)43, Interim Resolution of 24 September 2015, CM/ResDH(2015)156, Interim Resolution of 8 June 2016, CM/ResDH(2016)144.

[16] Committee of Ministers, Interim Resolution of 8 June 2016, CM/ResDH(2016)144.

[17] Committee of Ministers, Decision of 8 December 2016, CM/Del/Dec(2016)1273/H46-3.

[18] Committee of Ministers, Decision of 8 June 2017, CM/Del/Dec(2017)1288/H46-2.

[19] Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights, 10th Annual Report of the Committee of Ministers 2016 (Council of Europe 2017), at 48.

[20] Ibid., at 66.

[21] Ibid., at 13.

[22] Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted by the Committee of Ministers on 19 January 2000, at the 694th meeting of Ministers’ Deputies.

[23] Judgment of 18.1.1978, Series A no. 25, § 154; Ireland v UK, ??; Guzzardi v. Italy, 6 November 1980, § 86, Series A no. 39; Karner v. Austria, no. 40016/98, § 26, ECHR 2003‑IX; Rantsev v. Cyprus and Russia, 7 January 2010, no. 25965/04 § 197.

[24] Verpflichtungen (supra note 1), at 279 et seq.; L. Wildhaber ‘Erfahrungen mit der Europäischen Menschenrechtskonvention’ Revue de droit suisse, 98 (1979) II, 329 (355); R. Bernhardt ‘The Convention and Domestic Law’ in R. St-J. Macdonald/F. Matscher/H. Petzold (eds.) The European System for the Protection of Human Rights (Dordrecht Nijhoff 1993), 25 (39); P. Leuprecht ‘The Execution of Judgments and Decisions’ ibid., 791, at 792-793; G. Ress ‘Überlegungen zur Entscheidungsbefugnis des Europäischen Gerichtshofs für Menschenrechte‘ in S. Weth & S. van Oostrom (eds.) Festschrift für Maximilian Herberger (juris GmbH 2016), 801 (805-806).

[25] Valenzuela Contreras v. Spain, judgment of 30.7.1998, Reports of Judgments and Decisions 1998-V, 1928 § 60 (concerning telephone tapping).

[26] Constitutional Court’s judgment of 15 November 2006, File no. I. ÚS 310/05. See also judgment of 30 June 2015, File no. II. ÚS 1135/14.

[27] Explanatory report § 27.

[28] R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.

[29] BVerfG, 2 BvR 2365/09, 4 May 2011 (preventive detention), Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 128, 326, at 368 et seq.

[30] Bundesverwaltungsgericht (BVerwG) 2 C 1.13, judgment of 27 February 2014. See U. Di Fabio Das beamtenrechtliche Streikverbot (2012); M. Kutscha ‘Beamtenstreikrecht - Leipziger Verbeugung vor Straßburg’ RUP 50 (2014), 206 et seq.; J. Polakiewicz/A. Kessler ‘Das Streikverbot für deutsche BeamtInnen - Die Bedeutung der Rechtsprechung des EGMR für deutsche Gerichte’ NVwZ 31 (2012), 841 et seq.

[31] BVerwG, ibid., marginal note 45 [translation by the author].

[32]  Constitutional Court’s judgment of 15 November 2006, File no. I. ÚS 310/05.

[33] R. Dworkin Taking Rights Seriously (Harvard University Press 1977) at 270.

[34] See Caroline von Hannover v. Germany, judgment of 24 June 2004; Caroline von Hannover v Germany (No 2), judgment of 7 February 2012; Lillo-Stenberg and Sæther v. Norway, 16. January 2014, no. 13258/09, where the Court embraced a two-three dissent judgment of the Norwegian Supreme Court, pointing out in particular that “although opinions may differ on the outcome of a judgment, ‘where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.’”

[35] See Evans v UK, judgment (GC) of 10 April 2007, § 73: “The dilemma central to the present case is that it involves a conflict between the Article 8 rights of two private individuals: the applicant and J. Moreover, each person's interest is entirely irreconcilable with the other’s, since if the applicant is permitted to use the embryos, J will be forced to become a father, whereas if J's refusal or withdrawal of consent is upheld, the applicant will be denied the opportunity of becoming a genetic parent. In the difficult circumstances of this case, whatever solution the national authorities might adopt would result in the interests of one or the other parties to the IVF treatment being wholly frustrated.”

[36] Handyside v. United Kingdom, judgment of 7 December 1976 (no. 5493/72) § 48.

[37] Jean-Marc Sauvé ‘L’étendue et les limites du pouvoir du juge’ Colloque européen sur le juge et la politique (31 October 2014): “… leaving a margin of appreciation to the states and their juridictions, and showing restraint in identifying points of consensus among national constitutional traditions. This balancing between the principles of primacy and subsidiarity will allow the European project to survive in the long term” (translation by the author).

[38] Verpflichtungen (supra note 1), at 368-369.

[39] Statement of H.H. Koh at the ‘High-Level Conference on the Future of the European Court of Human Rights’ (25-27 April 2011).


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