Foreword

In September 2012, the Max Planck Institute for International, European and Regulatory Procedural Law took up its work in Luxembourg. Since September 2014, the Institute comprises two departments: for European procedural Law and comparative civil procedure and for dispute resolution in international law. One of the Institute’s main research fields relates to dispute resolution and proceedings before international courts and tribunals. Therefore, the Institute is pleased that the second volume of its books series addresses the effect and implementation of the judgments of the European Court of Human Rights. This topic is of great importance, not only for the effectiveness of the system of the European Convention on Human Rights, but also for the efficiency of international courts and tribunals in general. The Strasburg Court has developed innovative practices and the Court’s awareness for the implementation of its judgments is outstanding and should be taken as a model by other international institutions.

This book is the second publication of the book series of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law which comprises books on research performed by the Institute and its collaborators as well as studies on dispute resolution which have a strong affiliation with the research profile of the Institute. When Professor SeibertFohr and Professor Villiger proposed to publish the papers of the Göttingen conference of 2013 in the book series of the Institute, I immediately agreed. Today, I would like to express my gratitude to the editors and the contributors of the volume, but also to the collaborators of the Max Planck Institute Luxembourg, Edith Wagner and Brian Alexander McCafferty for assisting the editors in the publication process.

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Preface

In recent years the effects and the implementation of judgments of the European Court of Human Rights have attracted increasing interest among practitioners and academics alike. The more the Court deals with cases which are relevant not only for the individual applicant but which also arise due to structural defects of States’ legislation, the more the domestic legal order at large is implicated and questions about the effects of the Court’s judgments arise. This leads to the following examination: Can the Court play a role in the implementation of its holdings at all? How far should the Court go in managing the effects of its own jurisprudence?

These are only two of the issues which we began to discuss some time ago. What started as an informal academic interchange between us, over time became a broader undertaking leading to an international conference at Göttingen University in September 2013. The conference discussed and tried to devise future strategies to facilitate the dialogue between the European Court of Human Rights and national stakeholders. With the most distinguished experts among the speakers of the conference, a high-level transnational dialogue ensued. Each panel was composed of a judge of the European Court of Human Rights, a judge from a domestic Constitutional or Supreme Court, an experienced practitioner and a renowned academic, the ensemble of which represented different stakeholders and various European jurisdictions. We are genuinely and sincerely indebted to Dean Spielmann, the President of the European Court of Human Rights, for his inspiring keynote speech, our speakers and panel chairs for their intriguing contributions as well as to the Fritz Thyssen Foundation for the generous funding of the conference. The staff of the Göttingen Institute for International Law and European Law and the Georg August University were of great help in organizing this event. Most of all we would like to express our gratitude to Torsten Stirner for his dedicated research assistance, and to him, Christian Jelinsky and Florina Nessmann for their highly efficient editing assistance. Finally, we are grateful to Professor Burkhard Hess and his research assistant Edith Wagner of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law for publishing this volume in the Institute’s newly established series “Studies on International, European and Regulatory Procedural Law”.

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Preface

Our dialogue on the effects and implementation of the European Court of Human Rights’ jurisprudence merely started at the Göttingen conference. To open it to a wide audience and to engage all those interested in this undertaking we are publishing the conference presentations in this edited volume. It is our sincere hope to stimulate further debate on these issues so that the protection of human rights in Europe can further be enhanced.

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Contents

II.Binding Effects and Declaratory Nature of ECtHR Judgments

Almut Wittling-Vogel

III.Award of Damages

Julia Laffranque

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V.The Role of National Courts in the Implementation of ECtHR Judgments

Thomas Giegerich

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Protection

Anja Seibert-Fohr & Mark E. Villiger

The European Court of Human Rights (ECtHR) is mandated to ensure that states parties to the European Convention on Human Rights (ECHR) observe their engagements. The ECtHR is competent to interpret and find violations of the ECHR on the basis of individual complaints, but the significance of these findings often goes beyond an individual case, particularly if the violation is based on legislation. States are then confronted not only with providing individual remedies but also with preventing similar future violations: a question relevant for the executive, legislature and judiciary alike. Prevention of future violations is also in the interest of the ECtHR which faces more than sixty-five-thousand new applications each year.1

An effective implementation thus requires a constructive dialogue between the Court and the states parties to the Convention. Since this is an ongoing process the question is how this process can be further enhanced. Legal literature focuses on whether states comply with ECtHR orders without giving equal consideration to the role of the Court; and it is concerned mostly with individual states parties to the ECHR.2 This volume, however, takes a broader perspective by addressing generic implementation issues and by including experts from various Council of Europe (CoE) member states. Together they evaluate the role played and to be played by the ECtHR in the implementation of its judgments.

1The European Court of Human Rights – In Facts and Figures (31 December 2013), available at http://www.echr.coe.int/Documents/Facts_Figures_2013_ENG.pdf (last visited 13 February 2014), 5.

2See, e.g., H. Keller & A. Stone Sweet (eds.), Europe of Rights (2008); R. Blackburn & J. Polakiewicz (eds.), Fundamental Right in Europe (2001); P. Popelier et al. (eds.), Human Rights Protection in the European Legal Order: The Interaction between the European and the National Courts (2011), Ch. 5 et seq.; D. Anagnostou (ed.), The European Court of Human Rights: Implementing Strasbourg’s Judgments on Domestic Policy (2013); T. Barkhuysen et al. (eds.), The Execution of Strasbourg and Geneva Human Rights Decisions in the Domestic Legal Order (1999).

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A. Jurisdictional Developments

The implementation of the European Convention has traditionally been considered as a matter conducted exclusively through the execution of judgments supervised by the CoE Committee of Ministers under Article 46 of the European Convention. The role of the ECtHR has not been given equal attention. This volume offers a closer look at the Court’s jurisprudence on effects and implementation and reveals considerable development beyond its traditional dualist approach.3 In recent years the ECtHR has been more prepared to elaborate on how to implement its judgments and specified necessary measures of redress and prevention.4 Its national State counterparts, however, have been reluctant to follow this advice wishing to maintain a sovereign right to choose among different means of implementation. The ensuing tension has attracted attention not only in new member states but also in established democracies which emphasise the principle of subsidiarity.

This volume provides a fresh look at the relationship between national jurisdictions and the ECtHR. Mutual consideration between the national and European levels is clearly indispensable to improve cooperation: competent national institutions need to consider ECtHR jurisprudence while the ECtHR needs to reflect on the potential effects of its judgments within the domestic

3For the Court’s traditional understanding according to which “the Court’s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53 (art. 53)”, see Marckx v. Belgium, ECtHR Application No. 6833/74, Judgment of 13 June 1979, para. 58. See also Airey v. Ireland, ECtHR Application No. 6289/73, Judgment of 8 October 1979, para. 26, which stipulated that “it is not the Court’s function to indicate, let alone dictate, which measures should be taken” in order to give effect to the rights of the ECHR.

4See, e.g., M. E. Villiger, Binding Effect and Declaratory Nature of the Judgments of the European Court of Human Rights: An Overview, in this volume; J. Laffranque, Can’t Get Just Satisfaction, in this volume, Ch. H.; H.-J. Cremer, Prescriptive Orders in the Operative Provisions of Judgments by the European Court of Human Rights: Beyond res judicanda? in this volume, Ch. A.; L.-A. Sicilianos, The Role of the European Court of Human Rights in the Execution of its own Judgments: Reflections on Article 46 ECHR, in this volume, Ch. B. II & III. See also G. Nicolaou, The New Perspective of the European Court of Human Rights on the Effectiveness of its Judgements, in C. Hohmann-Dennhardt et al. (eds.), Grundrechte und Solidarität – Durchsetzung und Verfahren: Festschrift für Renate Jaeger (2011), 163, 167. For the need to adopt general measures to prevent further violations see, e.g., Fabris v. France, ECtHR Application No. 16574/08, Judgment (GC) of 7 February 2013, para. 75.

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sphere. An impact assessment allowing the ECtHR to consider these effects could be an option. This and other means of legal interaction are evaluated by academics and practitioners in the following chapters with the intent to give practically relevant advice.

The compilation of their reflections on the implementation of ECtHR judgments is focused on the changing role of the ECtHR in the area of implementation and on the implications for the domestic level. The role of the Committee of Ministers in the execution of judgments has been extensively addressed elsewhere.5

This volume, instead, assesses the binding effects of ECtHR judgments (Part II) and the scope and reach of damages (Part III). Both these aspects determine to what extent further action is required by national authorities. Subsequently we evaluate the competences of the ECtHR and national institutions respectively by considering the principle of subsidiarity (Part IV) and the role domestic courts play in implementing ECtHR judgments (Part V). Finally, suggestions are made for the future roles of the ECtHR and domestic courts in implementation (Part VI). The remainder of this introduction gives an overview of the issues addressed in the respective parts.

5The role of the Committee of Ministers is outlined by Sicilianos, supra note 4, Ch. C. II. See also, e.g., E. Bates, Supervising the Execution of Judgments Delivered by the European Court of Human Rights: The Challenges Facing the Committee of Ministers, in T. A. Christou & J. P. Raymond (eds.), The European Court of Human Rights: Remedies and Execution of Judgments (2005), 49; L. Zwaak, The Supervisory Task of the Committee of Ministers, in P. v. Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (2006), 291; E. Lambert Abdelgawad, The Execution of Judgments of the European Court of Human Rights, 2nd ed. (2008); J. Polakiewicz, The Obligation of States Arising from the Judgments of the European Court of Human Rights (1993); P. Leach, The Effectiveness of the Committee of Ministers in Supervising the Enforcement of Judgments of the European Court of Human Rights, Public Law (2006) 2, 443; A. Drzemczewski, Monitoring by the Committee of Ministers of the Council of Europe, 2 Baltic Yearbook of International Law (2002), 83; X.-B. Ruedin, Exécution des arrêts de la Cour européenne des droits de l’homme (2009), 5 et seq. For the introduction of the “twin-track system” see P. Leach, Taking a Case to the European Court of Human Rights, 3rd ed. (2011), 98 et seq.; A. Mowbray, European Convention on Human Rights, 3rd ed. (2012), 58 et seq.

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B. Binding Effects and Declaratory Nature of ECtHR Judgments

Implementation is determined by the binding effects of ECtHR judgments. In general, pursuant to Article 46 of the ECHR, the binding force of ECtHR judgments is limited to the individual adjudicated case. Nevertheless, judgments have relevance beyond an individual case. For example, even though not formally bound by precedent, the ECtHR regularly considers its previous jurisprudence in the interest of legal certainty. This has a bearing, particularly if the ECtHR finds legislation in violation of the ECHR, not only on similar cases within a respondent state but also for other CoE states with comparable structural problems.

In this context, the questions arise: Are the traditional exigencies of public international law regarding the effects of international judgments sufficient and appropriate for modern human rights courts? Or is it necessary to adjust these rules in the context of the ECHR to allow for more effective human rights protection? Does the Convention permit such changes? What requirements does the ECtHR set as regards the effects of its judgments? What should governments do to comply with a series of judgments all finding the same violation (e.g., undue length of proceedings; conditions of detention)? To what extent do the judgments involve erga omnes effects? How much freedom does the judgments’ declaratory nature leave to governments – and where are the limits? To what extent can time limits for the implementation be established?

In an effort to tackle structural violations the European Court of Human Rights introduced the procedural device of pilot judgments.6 The ECtHR had been invited by the Committee of Ministers “to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem […] so as to assist States

6See Broniowski v. Poland, ECtHR Application No. 31443/96, Judgment of 22 June 2004, paras. 188-194; ECtHR, Rules of Court, Rule 61, available at http:// www.echr.coe.int/Documents/Rules_Court_ENG.pdf (last visited 14 February 2014), 34-35. For an evolution of this procedure and its critique see Sicilianos, supra note 4, Ch. B. I. 2, C. I & C. III. 2. a). See also M. Fyrnys, Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights, 12 German Law Journal (2011), 1231; E. Fribergh, Pilot Judgments from the Courts Perspective, in Council of Europe (ed.), Towards Stronger Implementation of the European Convention on Human Rights (2008), 86.

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in finding the appropriate solution”.7 The new approach has led to a diminishing leeway in the implementation of ECtHR judgments. This, together with the trend to ask for specific measures of implementation in individual cases, has been met with mixed reactions because Article 46 ECHR suggests a broad scope of implementation. Given this backdrop it is appropriate to take a fresh look at the Court’s judgments.8 With its focus on the binding effects and the declaratory nature of the judgments Part II considers inter alia to what extent the prescriptive orders of the ECtHR are included in the binding force of the judgment9 and to what extent and how the ECtHR can exercise restraint in favour of national parliaments.10

C. Award of Damages

Part III discusses another aspect which informs the scope of implementation: ECtHR competence to award compensation for damages to the plaintiff pursuant to Article 41 ECHR and the scope for restitution. While the InterAmerican Court of Human Rights has broadly interpreted a similar provision in the American Convention,11 the ECtHR has focused traditionally on the individual case at hand. The respondent state is thus asked to provide restitution. Apart from restitution the respondent government should ensure that the same violation will no longer occur. In most cases restitution requires the annulment of the Act contravening the Convention. The Court in its consequential orders also awards material and/or immaterial damages if restitution is unfeasible.

The ECtHR determines damages based on considerations of equity. Article 41 ECHR refers to ‘just satisfaction’ to be afforded to the victim of a

7Council of Europe (Committee of Ministers) (CM), Resolution CM/Res.(2004)3, 12 May 2004 on judgments revealing an underlying systemic problem.

8 See Villiger, supra note 4.

9 See Cremer, supra note 4.

10A. Wittling-Vogel, The Role of the Legislative Branch in the Implementation of the Judgments of the European Court of Human Rights, in this volume.

11D. Shelton, Remedies in International Human Rights Law, 2nd ed. (2005), 216 et seq.; D. C. Grossman, Reparations in the Inter-American System: A Comparative Approach, 56 American University Law Review (2007) 6, 1375, 1376. See also E. Lambert Abdelgawad, Is There a Need to Advance the Jurisprudence of the European Court of Human Rights With Regard to the Award of Damages?, in this volume, Ch. C.

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Anja Seibert-Fohr & Mark E. Villiger

violation. But the term ‘just satisfaction’ is open to interpretation and its exact scope is yet to be clarified. In this context, the questions arise: Can the suffering of individuals be compensated at all in monetary terms? Doesn’t the award of damages by the Court lead to a monetarisation of human rights? Can the award of damages be used to pressure a respondent government (retribution v. compensation)? Should the ECtHR be more innovative by indicating other remedies? What are the relevant criteria for the award of material and immaterial damages?

These are some of the issues when we consider the question of what damages are necessary to effectively protect ECHR rights. Part III of this volume demonstrates that the ECtHR has gradually extended its jurisprudence beyond its traditional approach of pronouncing declaratory judgments and leaving the supervision of their execution to the exclusive competence of the Committee of Ministers. The ECtHR now goes beyond the award of satisfaction by issuing consequential orders and asking the defendant state to provide specified measures of redress.12 A recent example is the ECtHR order of 9 January 2013 in Volkov v. Ukraine to reinstate a Supreme Court judge who had been removed from office in violation of Article 6 ECHR.13 But with this extended approach the question arises as to how far the ECtHR can go to influence the implementation of its judgments in the award of damages and how Article 41 and Article 46 ECHR relate to each other.

With its overview of evolving ECtHR jurisprudence on damages Part III illustrates that there is already a vast array of both individual and general measures which the Court has indicated or even prescribed, from different forms of satisfaction to the re-opening of domestic proceedings.14 Part III considers whether there is a pattern in the award of damages.15 It also evaluates to what extent this practice can be based on the powers accorded to the Court by the ECHR and whether there is even a need to advance its ju-

12See e.g. Assanidze v. Georgia, ECtHR Application No. 71503/01, Judgment (GC) of 8 April 2004, para. 202-203 & esp. operative part, para. 14 (a). For an account of this development see Laffranque, supra note 4.

13Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9 January 2013, para. 208 & operative part, para. 9.

14Laffranque, supra note 4. See also Sicilianos, supra note 4, Ch. B. II. et seq.

15Ibid.

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risprudence with regard to the award of damages.16 Finally, state compliance with the award of damages is examined taking the example of France.17

D. The Role of Subsidiarity

Part IV turns to the relationship of the ECtHR to the states parties of the ECHR.18 The responsibility to protect human rights is primarily with the states parties. They may even go beyond the Convention by establishing higher domestic standards for the protection of human rights. The subsidiary role of the ECtHR is emphasised by the exhaustion of local remedies rule: the ECtHR is only competent to hear cases if remedies provided for at the national level have failed. Nevertheless, the ECtHR claims a strong standardsetting function which often conflicts with domestic statutes.

The question arises how far the ECtHR may go in its jurisprudence and whether it should defer more to democratically elected parliaments. This question has attracted increasing attention leading to the adoption of Protocol No.15 which will formally add the principle of subsidiarity to the ECHR when it enters into force. But what is required from the ECtHR in the interest of subsidiarity and how can this be achieved? What impact does the principle of subsidiarity have procedurally and what standard of review should the ECtHR employ to effectuate subsidiarity? Subsidiarity also becomes relevant in the context of damages: to what extent should subsidiarity influence the Court’s jurisprudence?19 On the other hand, what are the limits of subsidiarity and what role should subsidiarity play in the domestic implementation of ECtHR judgments?

Part IV, dealing with these matters, considers various mechanisms for the implementation and fine-tuning of the subsidiarity principle which shapes the mutual European and national relationship.20 Among these mechanisms are the application of proportionality review and the scope of the margin of

16Lambert Abdelgawad, supra note 11.

17M. Puéchavy, France and the Award of Damages: The Payment of Just Satisfaction and Costs and Expenses in France, in this volume.

18S. Cassese, The Constellation of Global and National Courts: Jurisdictional Redundancy and Interchange, in this volume.

19Laffranque, supra note 4, Ch. B & K.

20Cassese, supra note 18, Ch. C. & D.

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appreciation.21 These principles are of particular interest in cases of multipolar human rights conflicts where subsidiarity demands particular attention. To guide ECtHR jurisprudence, concrete suggestions are given on how to procedurally examine domestic court balancing decisions in cases of conflicting rights in order to achieve an appropriate level of control.22 Several contributions also consider the question of in which cases and to what extent the ECtHR should defer to domestic legislatures in the interest of democracy.23 The case is made that the margin of appreciation doctrine should be applied as a medium through which the ECtHR can alleviate the tension between the claims of fundamental rights and the democratic will.24 Finally, reference is made to the Brighton Declaration which underlines the significance of the subsidiarity principle in the ECHR system and provides for several other procedural and institutional measures reinforcing the application of the subsidiarity principle.25

E. The Role of National Courts in the Implementation of ECtHR Judgments

Part V turns to the role of domestic courts in the implementation of ECtHR judgments using three exemplary case studies. Though under Article 46 (1) ECHR, ECtHR judgments are binding on the respondent government, the ECtHR is not empowered to annul the decisions of domestic courts, even less to decide in their stead. ECtHR judgments declare whether or not there has been a violation of the ECHR. Therefore, domestic courts are regularly seized to follow up on these holdings. In this context the questions arise: What does the binding nature of an ECtHR judgment imply for domestic courts? Are domestic courts as organs of the states parties to the ECHR bound by ECtHR decisions? How do domestic courts deal with potential

21A. Nußberger, Subsidiarity in the Control of Decisions Based on Proportionality: An Analysis on the Basis of the Implementation of ECtHR Judgments into German Law, in this volume, Ch. B. II. & C. II.; Cassese, supra note 18, Ch. D. See also A. Paulus, From Implementation to Translation: Applying the ECtHR Judgments in the Domestic Legal Orders, in this volume, Ch. C. I.

22Nußberger, supra note 21, Ch. C. II. See also Paulus, supra note 21, Ch. C. I.

23J. Laws, Are Human Rights Undemocratic?, in this volume; Wittling-Vogel, supra note 10, Ch. A. I.

24Laws, supra note 23.

25This contribution was written by an insider who actively participated in this process: D. Walton, Subsidiarity and the Brighton Declaration Beitrag, in this volume.

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conflicts between ECtHR decisions and national constitutional law? What are feasible strategies to mediate conflicts between national and European human rights jurisdiction?

Referring to the most recent jurisprudential developments in Germany, Poland and Hungary Part V considers what concrete role national courts can and do play in the implementation of ECtHR judgments. Without claiming to give a comprehensive overview, these examples allude to the challenges and advancements of national judicial implementation. The German example of preventive detention was chosen because of the different scope of protection of the right of liberty of person under the ECHR and national constitutional law. The study shows how the German Federal Constitutional Court and the ECtHR in an ongoing dialogue have dealt with this difference in an effort to reconcile their interpretation of the respective guarantees.26 This is illustrated by the ECtHR decision which attracted considerable domestic attention. The Strasbourg judgment in M. v. Germany led to some irritation in Germany because it differed from established constitutional case law. But this case finally led to a reconsideration of constitutional interpretation and to a statutory reform.27 Based on the experience gained in this case suggestions are made for how domestic courts and the ECtHR can facilitate national implementation in the future.

The Polish and the Hungarian studies, too, show how domestic courts can give effect to ECtHR jurisprudence and how procedurally domestic courts seek to harmonize national law with ECtHR case law. Based on a broad interpretation of implementation the authors of these contributions, both high-level national judges, explain how their jurisdictions engage with ECtHR judgments in terms of statutory and constitutional interpretation and what obstacles they face. The Polish contribution illustrates current implementation practice with a reference to several administrative law cases,28 whereas the Hungarian contribution points to recent developments in the jurisprudence of the Hungarian Constitutional Court.29 The Hungarian ex-

26T. Giegerich, The Struggle by the German Courts and Legislature to Transpose the Strasbourg Court’s Case-Law on Preventive Detention into German Law, in this volume.

27For the characterisation of the ECtHR judgment in M. v. Germany as a “legal irritant” see Nußberger, supra note 21, Ch. A. II.

28J. Chlebny, How a National Judge Implements Judgments of the Strasbourg Court, in this volume.

29P. Kovács, International Law in the Recent Jurisprudence of the Hungarian Constitutional Court: Opening of a New Tendency?, in this volume.

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ample demonstrates that ECtHR jurisprudence can even be relied on by domestic courts as a safeguard against constitutional changes in order to counter governmental efforts which seek to lower national human rights standards and to limit judicial review.30

F. The Future Role of the ECtHR and National Courts in Implementation

Part VI again takes a general perspective in considering the future role of both European and national jurisdictions with regard to implementation. In this context the pertinent questions are: Should the ECtHR develop a more proactive role with regard to the effects and the implementation of its judgments? To what extent should ECtHR judgments be more than declaratory and to what extent may the award of damages go beyond individual restitution? How can further changes be implemented? Can this be done de lege lata or de lege ferenda? In other words, is the ECtHR empowered under the ECHR as it stands to manage the effects of its judgments or is a formal amendment to the ECHR required? Can a more progressive reading of the ECHR be reconciled with the principle of subsidiarity? How can a more activist approach be reconciled with the CoE’s commitment to democratic government? What are the implications for the supervisory powers of the Council of Ministers over the execution of judgments? How would it influence the proceedings, if the ECtHR manages the effects of its judgments more dynamically? Is there a need to develop additional procedural steps (e.g. impact assessments)? What would be the impact on the structure and substance of judgments?

Based on Parts I-V and on lessons learned from recent cases, Part VI evaluates reform proposals and their feasible implementation. It asks about the advantages and disadvantages of maintaining the present system (Articles 41 and 46 ECHR) as regards binding, yet declaratory judgments and the award of damages.31 It reflects on the future implementation of ECtHR judgments in national legal orders, considering implementation not as a mere mechanical application but as a process of “translating” an ECtHR decision into a national legal order.32 The ECtHR is cautioned to exercise its competences reasonably and complimentary without being excessively prescrip-

30For the latter issue, see ibid., Ch. C.

31Paulus, supra note 21, Ch. B. II.

32Paulus, supra note 21.

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tive so as to maintain an institutional equilibrium with the Committee of Ministers while leaving states a margin of appreciation in the implementation of the Convention and the execution of judgments.33

G. Multipolar Engagement

While the individual parts of this volume focus on specific aspects of implementation, they nevertheless show a common understanding. Instead of considering European human rights protection within the confines of a static legal hierarchy and searching for a final authority, the contributions to this volume emphasise jurisdictional interchange.34 The ECtHR and national jurisdictions take part in the joint endeavour of the Council of Europe. They share responsibility for the protection of human rights in Europe.35 This responsibility requires active engagement by all relevant institutions, whether national or international, whether legislative, executive or judicial. Accordingly the authors refer to a “multipolar college of human rights protectors”36 and call for a “constructive cooperation” between them.37 Obviously this interchange leads to tensions and irritations; but they can also be futile.38

To facilitate and shape this jurisdictional interchange and to develop a cooperative approach, various legal devices are referred to: the consensus doctrine39, the subsidiarity principle40, the margin of appreciation41, proce-

33Sicilianos, supra note 4, Ch. C. II. & IV.; Paulus, supra note 21, Ch. C. II. & III. See also Nußberger, supra note 21, Ch. C. II. 2.

34For this term see Cassese, supra note 18, Ch. C. According to Paulus, human rights protection in Europe is more than a simple ‘command and obey’- relationship. Paulus, supra note 21, Ch. D.

35D. Spielmann, Keynote Address, in this volume.

36Giegerich, supra note 26, Ch. C. II.

37Ibid., Ch. C. III.; Wittling-Vogel, supra note 10, Ch. C. For the call for mutual respect see Paulus, supra note 21, Ch. D.

38Nußberger, supra note 21, Ch. A. II.

39Cassese, supra note 18, Ch. C.

40See Part IV on subsidiarity, in this volume.

41Paulus, supra note 21, Ch. C. I; Sicilianos, supra note 4, Ch. C. II. & IV.; Laws, supra note 23; Cassese, supra note 18, Ch. C; Wittling-Vogel, supra note 10, Ch. A. II & D.; Walton, supra note 25, Ch. B. II.

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dural instruments42, the principle of bona fide43 and judicial self-restraint44. These devices are meant to be complementary and counterbalancing. For example, the margin of appreciation accorded to the states parties to translate ECtHR judgments into the national legal order45 has its counterpart in the bona fide approach which requires domestic institutions to give due weight to ECtHR jurisprudence in implementation. Readers will find additional aspects of this multipolar engagement in this book.

It is beyond the scope of this introduction to go beyond an overview. In preparing this project we have identified and specified pertinent considerations regarding the effects and implementation of ECtHR judgments. Readers will find these and other issues addressed in this volume. Nevertheless this can only be a beginning. The challenge of implementation is ongoing and can neither be dealt with exhaustively nor finally settled solely in this volume. Therefore the issues raised and their discussion are intended to trigger further reflection. We invite readers to follow-up and consider these issues from yet different angles.

42Nußberger, supra note 21, Ch. C. II. See also the reference to infringement proceedings in Lambert Abdelgawad, supra note 11, Ch. C.; Cremer, supra note 4, Ch. C. III.

43Cremer, supra note 4, Ch. C. III.

44Wittling-Vogel, supra note 10, Ch. A.

45Paulus, supra note 21, Ch. B. II.

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