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Strasbourg (Cameron, Letsas, Lambert-Abdelgawad). The qualifications of judges nominated must live up to the demands of article 21(1) of the Convention so that only judges of ‘high moral character’ who ‘possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence’ are elected to Strasbourg. The nomination and election processes in the PACE and the CoM must be transparent, to increase acceptance among the greatest possible number of member states.

The current process could be further improved. Currently, the PACE is electing the judges, but a consultative committee of the Court comments upon the qualifications and suitability of the candidates who stand for election. The CoM also maintains an ad hoc group which comments upon candidates. Finally, the CoM has adopted guidelines on the nomination by member states of judges to the Court (Lambert-Abdelgawad). Hence, in addition to the member states nominating the candidates, all organs of the Council of Europe have stakes in the election process. There may be advantages to a more formalised procedure concentrated in the hands of one organ, possibly the PACE (ibid.).

Many other measures and aspects can be mentioned with regard to improving the Court’s ability to render swift, prompt, just, and wellreasoned decisions which will also be implemented at the member state level. The criterion of a reasoned decision applies at the substantive law level to the Court’s approach to interpreting the Convention, above all, to the margin of appreciation and dynamic interpretation doctrines. Letsas and Arai-Takahashi have both advanced views as to how this approach could be understood to resonate at the member state level: the Court should apply autonomous interpretations of the rights enshrined in the ECHR. These should derive from international (moral) standards and not from majoritarian definitions deduced from the national levels.

The Court’s overall approach to interpretation of the ECHR seems to resonate at the member state level. The consistent interpretation of the ECHR and the case law of the ECtHR is so uniform in many of the European member states that it exemplifies the universality and the successful domestication of the Convention at the national level (Andenas and Bjorge). In addition, national courts do not look to the ECtHR alone when applying and interpreting the Convention: they frequently invoke the practice of other member states (ibid.).

The Court’s judgments may be implemented more readily at the member state level if the Court continues to develop its approach to non-pecuniary remedies. They can, for instance, include requirements

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concerning the release of prisoners, the resumption or reopening of domestic proceedings, as well as further recommendations (Leach). This more concrete approach can also assist the CoM in its supervision of the implementation of judgments. It should accept the more active role of the Court in this field, as it is unlikely that the CoM will further increase its capacities on implementation of the Convention (Lambert-Abdelgawad). Nonetheless, this approach may have unwanted and devastating consequences in individual cases if it is met by outright rejection at the member state level, such as in the Hirst decision against the UK (Leach).

Another useful procedure to improve implementation of the Court’s judgments was introduced with the new article 46 of the ECHR. It offers the possibility to obtain a second ruling where issues arise from the interpretation of the Court’s judgments. Though the Court has not yet been addressed under this new procedure (Lambert-Abdelgawad), this may prove an interesting way to reduce tensions between the Court and the member states, in particular on sensitive issues involving national interests. It provides another opportunity to bring justice to the claimant, who is usually the one who is suffering the most from the nonimplementation stalemate. Another procedure aimed at more effective implementation of the Court’s judgments is the preliminary reference mechanism, introduced by the Brighton Conference. This procedure awaits formal inclusion in the Convention.

Finally, some may question whether the co-respondent mechanism and the primary involvement procedure introduced in the Draft Accession Agreement of the EU will provide justice to the individual complainant (Besselink). Before the ECtHR, he or she will get another powerful respondent, eager to defend the EU legislation. The hope is that the ECtHR will also be ready to ensure effective protection of Convention rights in relation to a strong regional organisation. As regards ECHR member states’ participation in UN operations, the Court has found the Convention to apply where individuals were under direct rule of such states, such as detention situations, notwithstanding the fact that the prisons were placed outside Europe’s borders (Tomuschat).

3.3Proportionality

Proportionality allows striking a balance between individual rights and the community interest. Accordingly, balancing plays a prominent role in cases before member states’ highest or constitutional courts and the ECtHR (Andenas and Bjorge). Proportionality balancing is an example

of the reception of the ECHR in national member states’ courts and a growing Europeanisation of fundamental rights conceptions within the Council of Europe. Cases from the UK and Germany, in particular, epitomise how proportionality considerations may facilitate and further guide the reconciliation of national constitutional rights interpretations with Strasbourg’s jurisprudence (ibid.). Thus, proportionality considerations can indicate ways to harmonise Strasbourg’s human rights conceptions with Karlsruhe’s, London’s, and Oslo’s.17 Even formally dualist countries like Germany, Italy or Russia chose proportionality balancing over pure formalist arguments such as the lex posterior or lex superior principle, for the sake of integration of the international obligations into national constitutional systems (ibid.).

3.4 Subsidiarity

The contributions in this book illustrate that subsidiarity is relevant for several aspects of the Convention. It shapes admissibility considerations, as well as the application and interpretation of the substantive law, and impacts considerations on remedies. It applies to the implementation of the ECHR at member state level, in the Court’s relations with the EU and, possibly, in its relations with the UN. Normatively, the principle urges deference to the lower level, where a hierarchically higher and lower level interact. In the multi-layered, multi-faceted relationships of the ECtHR with the member states, the Council of Europe organs, the EU and the UN, subsidiarity considerations may need to be accompanied by proportionality considerations, which can moderate between the various interests at the various levels involved.18

The exhaustion of local remedies provision in article 35(1) ECHR, as well as the present version of article 35(3)(b) ECHR, can be considered to incorporate subsidiarity considerations at the admissibility stage. As the Court’s jurisprudence evinces, the margin of appreciation doctrine may be held to moderate between national protection and the ECHR on the other hand (Arai-Takahashi). Thus, in A and Others v. UK, the Court

17B. Peters, ‘Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Relationship with the European Court of Human Rights in the Preventive Detention Decision’, German Law Journal 13 (2012) 757–72, 772.

18Compare M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, European Journal of International Law 15 (2004) 907–31, 921.

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affirmed the doctrine had ‘always been meant as a tool to define relations between domestic authorities and the Court’ (ibid.).

The Court’s standard predominant approach to remedies has also corresponded to subsidiarity considerations and, as Leach demonstrated, maybe overly so. Earlier, it merely contained a declaration that the Convention had been violated and an appeal to the member states to award compensation. This rendered much deference to the national levels. For example, only in exceptional cases were member states asked to alter their legislation (Leach). But the Court’s expanding jurisprudence on nonpecuniary remedies may not necessarily constitute a breach of the subsidiarity principle, since the main responsibility for implementation of the Court’s judgments still rests with the member states. Accordingly, it has until now met surprisingly little opposition from member states (ibid.). By contrast, the Court’s recommendations on the reopening of domestic proceedings, which serve as restitutio in integrum in cases concerning, for example, unfair domestic proceedings, or criminal cases, give more weight to subsidiarity considerations, since national courts must decide the case anew. This approach should possibly be made obligatory, to increase its overall effectiveness (ibid.). It can also be questioned whether this approach is appropriate and effective in complaints against states with systemic human rights problems and weak judicial systems.19

Finally, subsidiarity considerations can also be held to moderate the relations between the ECtHR and the CJEU. After accession of the EU to the ECHR, the Draft Accession Agreement will allow for the CJEU’s primary right of review of violations of the ECHR in the EU before passing the case on to the ECtHR. Today, the ECtHR’s Bosphorus doctrine lends deference to the EU standard of human rights protection in member states’ implementation of EU legislation (Besselink, Tomuschat). It is debatable whether there is a need to uphold the Bosphorus doctrine after the accession of the EU (Besselink). A continued application of the doctrine could be seen to entail an unequal treatment of the parties to the ECHR, as it would shield the member states of the EU from the ECtHR’s substantive jurisprudence.20

19 H. Keller, A. Fischer and D. Kühne, ‘Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals’, European Journal of International Law 21:4 (2010) 1032.

20T. Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’, The Law and Practice of International Courts and Tribunals 8:3 (2009) 375–98, 395.

3.5Comity: the dialogue des juges

Andenas and Bjorge’s and Besselink’s assessments highlighted comity as a further element shaping the Court’s inter-institutional relations to the national constitutional and highest courts at the member state level and to other European courts, like the CJEU. Comity here is an overall description of various practices which facilitate cooperation, exchange and interaction among Europe’s constitutional and supreme courts and their judges. Strasbourg has institutionalised the exchange with the highest national and constitutional court judges in the dialogue des juges, an annual meeting which debates salient issues arising in the Convention context. Since about 2006, the ECtHR has published the proceedings of these joint annual seminars with constitutional court judges and the plenary of the Court.21 Meetings have debated central elements of ECtHR doctrine, such as the role of consensus in the ECHR system, the evolutive interpretation doctrine, and the subsidiarity principle,22 and thus contributed to a common understanding of the ECHR’s concepts and interpretations by the ECtHR, further shaping the European sphere of fundamental rights.

The Court’s relations with other courts concern not only the national levels. Besselink illustrated the importance of Strasbourg’s judicial dialogue with Luxemburg, initiated after the ECJ’s decision in the Hoechst case. This case concerned the searching of premises of Hoechst Ltd., an incorporation, and thus needed to answer whether legal persons could benefit from the protection of article 8 ECHR. Whereas the ECJ assumed that this question had not yet been tackled by the ECtHR, the Court had, in fact, affirmed a few months earlier in the Niemitz judgment that article 8 could indeed lend protection to legal persons (Besselink). It is hoped that the two courts will continue those dialogues even after the accession of the EU to the ECHR.

4.The future: constituting Europe?

Previous assessments have described the Court as a janus-headed animal pursuing individual justice on the one hand, and constitutional justice on the other.23 It is disputable whether those two attributes really describe

21See ECtHR, ‘Dialogue between judges’, at www.echr.coe.int/ECHR/FR/Header/Reports +and+Statistics/Seminar+documents/Dialogue+between+Judges/.

22See the seminars for 2008, 2010 and 2011.

23J. Christoffersen and M.R. Madsen (eds.), The European Court of Human Rights between Law and Politics (Oxford University Press, 2011), chapter 1.

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an antagonism. Be that as it may, this book finds that the Court’s current role in relation to the member states in many respects is constitutional. The Court selects and prioritises cases and denies admissibility in more than 90 per cent of the cases before it. The various reform suggestions that introduce new admissibility criteria, procedures, and implementation suggestions further shape the Court’s constitutional role. It will likely continue to develop in this direction. Some of the recent changes adopted at Brighton, in particular on the modified admissibility criterion of article 34(3)(a) ECHR, affirm this point.

Even though the ECtHR’s constitutional role is not so clear in relation to the EU and to the UN, some ‘constitutionalist’ tendencies also influ- ence these relations. The Bosphorus and the Al-Skeini jurisprudence exemplify how the Convention may continue to apply, no matter whether the member state act was mandated by the EU or authorised by the UN.

Future discussions on the further development of the Court’s jurisprudence should thus revolve around how its constitutional role is to be understood, and along which lines it needs to be further developed. This book suggests that a combination of the principles of effectiveness, proportionality, and subsidiarity should guide some of the further debates to come.

Those findings notwithstanding, the political and role model function of the Court should not be underestimated. The Court has already been the motor of fundamental changes in the European human rights architecture. We must hope it will not suffocate, be it from its own success, or from other challenges.

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