Partnering with Strasbourg: Constitutionalisation of the European court of human rights, the accession of central and east European States to the council of Europe, and the idea of pilot judgments

Human Rights Law Review

Volumn 9, Issue 3, 2009, Pages 397-453

  Sadurski, Wojciech ^a,b  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

^b UNIVERSITY OF SYDNEY   (Australia)

Author keywords

[No Author keywords available]

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EID: 69949134415     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngp011     Document Type: Article

References (195)

1. Hutten-Czapska v Poland 2006-VIII; 45 EHRR 4, partly concurring, partly dissenting opinion of Judge Zupančič.
2. Whenever I refer to the 'Court' or the 'European Court' in this article, I have in mind the European Court of Human Rights, unless the context suggests clearly a different court.
3. See in particular a research project which culminated in a monumental book by Keller and Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008).
4. See also the 'Juristras' project funded by the European Commission entitled 'The Strasbourg Court, Democracy and the Human Rights of Individuals and Communities: Patterns of Litigation, State Implementation and Domestic Reform', description available at: http://www.juristras.eliamep.gr/?page.id=2 [last accessed 1 June 2009].
5. For example, Stone Sweet and Keller state that 'the Convention and the Court perform functions that are comparable to those performed by national constitutions and national constitutional courts in Europe', in Stone Sweet and Keller, 'The Reception of the ECHR in National Legal Orders', in Keller and Stone Sweet, supra n. 3 at 7.
6. For an in-depth discussion of the case for 'constitutional justice' function of the Court, see Greer, 'Protocol 14 and the Future of the European Court of Human Rights', (2005) Public Law 83 at 96-104.
7. See also Greer, infra n. 7 at 165-74, 317.
8. Samantha Besson's formulation, though used not specifically in the context of the ECHR, 'The Authority of International Law', The 2008 Annual Julius Stone Address, Sydney, 19 August 2008.
9. I should emphasize that I am using, for the purpose of this article, the category of 'Central and Eastern Europe' as an aggregate but of course I am conscious of the fact that there is great diversity within this category, and from the point of view of the problems with democracy and human rights - an issue on which I focus in this paper - the differences are enormous. Indeed some of these countries can at best be called semi-democracies, due to very strong illiberal tendencies and severely underdeveloped systems of rights protection. Those include: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Macedonia, Moldova, Montenegro, Russia, Serbia and the Ukraine. (For an excellent analysis of the ECHR role towards those semi-democracies, which include also Turkey, see Harvey, The Future of the European Court of Human Rights, (Unpublished PhD thesis, European University Institute in Florence, 2006, chapter 3 at 125-82). On the contrary, some of these countries have reasonably well-developed democratic and judicial (including constitutional) systems, in particular Poland, Hungary, the Czech Republic, Slovenia and Slovakia. Romania and Bulgaria seem to be borderline cases, although much closer to the second than to the first category (largely thanks to the efforts undertaken in view of their accession to the EU). I will, however, keep referring to the CEE en bloc, because, as regards the main focus of this article, i.e. the constitutionalization of the ECHR system as evidenced, inter alia, by the emergence of 'pilot judgments', the latter countries also raised a fundamental challenge to the ECHR system. After all, two main 'pilot judgments' originated from Poland.
10. On 'the Turkish problem' within the Council of Europe system, see Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) at 94-103.
11. Stone Sweet and Keller, supra n. 4 at 3.
12. Ralph Beddard characterized the Convention 'as a kind of constitutional document for a united Europe', see Beddard, Human Rights and Europe 3rd edn (Cambridge: Cambridge University Press, 1993) at 5-6.
13. For instance, in Barfod v Denmark A 149 (1987); 13 EHRR 493 at para. 28, the Court claimed that it is 'empowered to give the final ruling' on whether a state's interference with a protected right is consistent with the European Convention.
14. As a judge of the European Court has declared: 'The process of application of the Convention has been, to a considerable extent, transformed into the process of application of the case law of the Strasbourg Court', see Garlicki, 'Some Observations on Relations Between the European Court of Human Rights and the Domestic Jurisdictions', in Iliopoulos-Strangas (ed), Cours suprêmes nationales et cours européennes: Concurrence ou collaboration? (Athens: Ant. N. Sakkoulas, 2007) 305 at 306.
15. Article 46 of the ECHR provides that: 'The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.'
16. For some telling examples of ECtHR-driven legislative changes in, inter alia, Austria, Belgium, Germany, the Netherlands and Ireland, see Shelton, 'The Boundaries of Human Rights Jurisdiction in Europe', (2005) 13 Duke Journal of Comparative & International Law 95 at 147.
17. Carter and Trimble, International Law, 2nd edn (Boston: Little Brown, 1995) at 309.
18. For an in-depth comparison, see Lemmens, 'The Relation between the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights - Substantive Aspects', (2001) 1 Maastricht Journal of European and Comparative Law 49.
19. For a similar comparison and conclusion, see Helfer and Slaughter, 'Towards a Theory of Effective Supranational Adjudication', (1997) 107 Yale Law Journal 273 at 297.
20. See Parliamentary Assembly, Recommendation 1649 (2004): Candidates for the European Court of Human Rights, 30 January 2004, at para. 13. This change would be brought about by Protocol No. 14, which only Russia has not ratified.
21. The Görgülü case, BVerfGE 111, 307.
22. Hoffmeister, 'Germany: Status of European Convention on Human Rights in Domestic Law', (2006) 4 International Journal of Constitutional Law 722 at 729.
23. For example, in Austria.
24. For example, in Spain and France.
25. For example, in Germany and Italy.
26. Krisch, 'The Open Architecture of European Human Rights Law', (2008) 71 Modern Law Review 183 at 196.
27. The Romanian legal scholar Corneliu-Liviu Popescu thus provides the example of a traditional doctrinal position held by the Romanian Constitutional Court which for years refused to endorse a clearly stated position of the ECtHR according to which the capacity of a public prosecutor ('procurator') to place a criminal suspect in preventive detention for a period of up to 30 days was inconsistent with Article 6(1) of the Convention. This legal regime was subsequently changed through legislative intervention, not by the Constitutional Court even though the latter had numerous occasions to do so. See Popescu, 'La Cour constitutionnelle roumaine face à la Cour européenne des Droits de l'Homme - entre soumission et rebellion', Perspectives Internationales et Européennes, available at http://revel.unice.fr/pie/document.html?id=34 [last accessed 1 July 2009].
28. The margin of appreciation 'seems to undermine the notion of universality that is a foundation of human rights theory', see Shelton, supra n. 13 at 134.
29. Steven Greer complains of 'casuistic, uneven, and largely unpredictable nature of the doctrine of margin of appreciation: See Greer, supra n. 7 at 223.
30. Sottiaux and van der Schyff, 'Methods of International Human Rights Adjudication:TOwards a More Structured Decision-Making Process for the European Court of Human Rights', (2008) 31 Hastings International & Comparative Law Review 115 at 135, footnote omitted.
31. Conversation with a judge of ECtHR, Strasbourg, 19 May 2008.
32. Stone Sweet and Keller, supra n. 4 at 12. At the beginning of 2009, nearly 100,000 cases were pending before the ECtHR.
33. This, I should emphasize, is a comparative statement and is not meant to suggest that no important cases, raising central and drastic issues about human rights, had reached the ECtHR prior to the enlargement of the early 1990s. Numerous decisions under Article 15 (derogations from the rights and freedoms in case of public emergency) are obvious exceptions to the generalization made on the main text. Turkey - to name just one pre-1990s Member State - generated a number of cases of dramatic urgency. No sharp line divides pre-and post-1990s; all I am concerned about is a trend.
34. Gaskin v UK A 160 (1989); 12 EHRR 36.
35. National Union of Belgian Police v Belgium A 19 (1975); 1 EHRR 578.
36. Marckx v Belgium A 31(1979); 2 EHRR 330.
37. See, for example, Tyrer v United Kingdom A 26 (1978); 2 EHRR 19 at para. 31.
38. See, for example, Klass v Germany A 28 (1978); 2 EHRR 214 at para. 42.
39. See, for example, Loizidou v Turkey A 310 (1997); 23 EHRR 513 at para. 72.
40. Harmsen, 'The European Convention of Human Rights after Enlargement', (2001) 5 International Journal of Human Rights 18 at 29.
41. Quoted by McCrudden, 'A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights', (2000) 20 Oxford Journal of Legal Studies 499 at 504.
42. Kentridge QC, quoted ibid. at 504, n. 11.
43. Harmsen, supra n. 36 at 23 (footnote omitted).
44. Stone Sweet and Keller, supra n. 4 at 8.
45. 300.
46. The European Council, held in Copenhagen in 1993, established that in order to be successful in its pursuit of full membership the applicant State must enjoy, inter alia, 'stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities ...' See European Council in Copenhagen, 21-22 June 1993, Conclusions of the Presidency, SN 180/1/93 REV 1, available at: http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/ ec/72921.pdf [last accessed 1 June 2009].
47. Flauss, 'Les conditions d'admission des pays d'Europe centrale et occidentale au sein du Conseil d'Europe', (1994) 5 European Journal of International Law 401 at 421.
48. See the views of Frédéric Sudre summarized by Harmsen, supra n. 36 at 20-1.
49. Declaration of the Council of Europe's First Summit, Vienna, 9 October 1993, available at: https://wcd.coe.int/
50. For an evaluation of Russia's human rights record, see Greer, supra n. 7 at 127-31.
51. Leuprecht, 'Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?', (1998) 8 Transnational Law & Contemporary Problems 313 at 331.
52. Harmsen, supra n. 36 at 22.
53. Smith, 'Western Actors and the Promotion of Democracy', in Zielonka and Pravda (eds), Democratic Consolidation in Eastern Europe - Vol. 2 (Oxford: Oxford University Press, 2001) 31 at 43: '[t]he West may have wasted leverage by hastily offering membership in the Council of Europe'.
54. See, for example, the landmark case Marckx v Belgium, supra n. 32, where Belgian law related to 'illegitimate' children was found discriminatory under Article 14 in conjunction with Article 8 of the ECHR.
55. Marckx v Belgium, supra n. 32 at paras 26 and 27.
56. Garlicki, 'Broniowski and After: On the Dual Nature of 'Pilot Judgments', in Caflisch et al. (eds), Human Rights - Strasbourg Views; Droits de l'homme - Regards de Strasbourg: Liber Amicorum Luzius Wildhaber (Kehl: N. Engel, 2007) 177 at 182-83 (footnotes omitted).
57. Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem, 12 May 2004, available at: https://wcd.coe.int/
58. Recommendation Rec(2004)6 of the Committee of Ministers to Member States on the improvement of domestic remedies, 12 May 2004; (2004) 26 HRLJ 116, available at: https://wcd.coe.int/
59. The first pilot judgment was Broniowski v Poland 2002-X; 40 EHRR 21, where the Court found that broad measures needed to be undertaken so as to provide a general compensation for those claimants who had been repatriated in the course of a re-drawing of Poland's borders during the Second World War. In particular, it related to the claims of those who had been repatriated from the territories beyond the Bug River which constituted the Eastern border of Poland after the end of the War. In its judgment, the Grand Chamber found a violation of Article 1 of Protocol No. 1 and noted that the violation was a result of 'a malfunctioning of Polish legislation and administrative practice' affecting a large class of claimants (point 4 of the operative part of the judgment). I have decided to use Hutten-Czapska as my illustration for the pilot-ruling model for two reasons. First, in Broniowski, in contrast to Hutten-Czapska, it is not the defective legislation that is the real source of the problem but the persistent failure by the executive to give effect to the relevant legislation. Second, Hutten-Czapska better illustrates the complex, intricate and iterated synergy between the European Court and the Polish Constitutional Tribunal. Hutten-Czapska is therefore a better 'exhibit' in my demonstration of two main points I am making about pilot judgments: That they may address the defects in legislation, and that they are supported by a close collaboration between the European and national courts.
60. 42 EHRR 15, Judgment of Chamber, 22 February 2005 (referred to as Hutten-Czapska (1)); Judgment of Grand Chamber, 10 June 2006, supra n. 1 (referred to as Hutten-Czapska (2)); and Judgment (Friendly Settlement), 28 April 2008 (referred to as Hutten-Czapska (3)).
61. So long as to cause a dissenting judge to observe caustically: 'I do not think that it was really necessary to reproduce all those very lengthy quotations from the Constitutional Court's judgments...'. See Judge Pavlovschi, partly concurring and partly dissenting in Hutten-Czapska (1), supra n. 56.
62. Ibid. at para. 187.
63. Ibid.
64. Ibid. at para. 190.
65. Ibid. at para. 191.
66. Hutten-Czapska (2), supra n. 56 at para. 39.
67. Ibid. at paras 233 and 234.
68. Hutten-Czapska (3), supra n. 56 at para. 27.
69. 44.
70. Ibid. at para. 34.
71. See supra n. 55.
72. I am grateful to Mr Adam Bodnar for this observation.
73. A formula used by Samantha Besson in her lecture on 19 August 2008 in Sydney, supra n. 5.
74. Helfer and Slaughter, supra n. 16 at 289.
75. Ibid. at 288.
76. Ibid. at 277.
77. Maestri v Italy 2004-I; 39 EHRR 38 at para. 47.
78. I am grateful to Magda Krzyzanowska-Mierzewska for pressing this point on me.
79. Broniowski, supra n. 55 at para. 193.
80. Apart from more principled reasons given by Judge Zagrebelsky, see below in the main text, the figures of potential similar cases supplied in Broniowski and Hutten-Czapska seem quite fantastic. In Broniowski, the assumption of about 80,000 cases potentially to be brought to the Court, see Broniowski, supra n. 55 at paras 162 and 193, was not borne out by the facts: There were, all in all, between 200 and 300 Broniowski-type cases ultimately brought to the ECtHR - an admittedly large figure but it should be remembered that there are currently roughly 100,000 cases pending before it. Even more tellingly, there was really only a handful of cases of the Hutten-Czapska type brought to the Court (25 pending as of November 2008) while the ECtHR had used the number of 'some 100,000 landlords and from 600,000 to 900,000 tenants' (see Hutten-Czapska (1), supra n. 56 at para. 191) in pressing its docket-control rationale. I am grateful to Magda Krzyzanowska-Mierzewska for this information and a related comment.
81. Hutten-Czapska (2), supra n. 56, partly dissenting opinion of Judge Zagrebelsky.
82. The 'horizontal' concern is expressed also in the Concurring Opinion of Judge Ziemele to the 2008 judgment: The structural and systemic problems 'raise legal and practical difficulties that the Committee of Ministers is much better equipped to monitor than the Court ...', Hutten-Czapska (3), supra n.56.
83. Hutten-Czapska (3), ibid., separate opinion of Judge Zagrebelsky joined by Judge Jaeger.
84. See Hutten-Czapska (2), supra n. 56 at partly concurring, partly dissenting opinion of Judge Zupančič. The dissenting part of this opinion (Part III) deals with the interpretation of the terms 'peaceful enjoyment of [one's] possessions' in Article 1 of Protocol No. 1, and has no relevance to our discussion here.
85. Ibid. at Part I of his opinion.
86. Ibid. at Part I.
87. Ibid. at Part I.
88. Ibid. at Part II.
89. Ibid. at Part II, both emphases added.
90. Ibid. at Part II.
91. See, for example, Hutten-Czapska (2), supra n. 56 at paras 137-140, 142.
92. Hutten-Czapska (2), supra n. 56 at Part 3, operative part of the judgment.
93. Ibid. at operative Part 3.
94. Ibid. at Judge Zupančič's opinion, Part I.
95. Ibid. at operative Part 4.
96. Ibid.
97. Ibid. at Judge Zupančič's opinion, Part II.
98. Ibid. (italics in original).
99. Hutten-Czapska (2), supra n. 56 at operative Part 4.
100. Garlicki, supra n. 52 at 185.
101. Keller and Stone Sweet, 'Assessing the Impact of the ECHR on National Legal Systems', in Keller and Stone Sweet, supra n. 3 at 703.
102. Sejdovic v Italy 42 EHRR 17, at operative Part 2A.
103. Sejdovic v Italy 2006-II (GC) at paras 109 and 120;
104. and Scordino v Italy (No.1) 2006-V; 45 EHRR 7(GC) at paras 230-231 and 236.
105. Similar language was used also in Lukenda v Slovenia 2005-X; 47 EHRR 32; Tekin Yildiz v Turkey, Application No. 22913/04, 10 November 2005;
106. and Xenides-Arestis v Turkey Application No. 46347/99, 22 December 2006.
107. Garlicki, supra n. 52 at 190.
108. The concept is used by Garlicki, ibid. at 191.
109. Ibid. at 190.
110. Ibid. at 190.
111. Ibid. at 191 (emphasis added).
112. Burdov v Russia 2002-III; 38 EHRR 29 (violation of Article 6(1) and Article 1 of Protocol No. 1 for failure to enforce court decisions on compensation for health loss). Since the Court's decision of 7 May 2002 in Burdov, more than 100 judgments were delivered over six years finding repetitive violations of the Convention on account of non-enforcement or late enforcement of domestic judicial decisions.
113. See Willis v UK 2002-IV; 35 EHRR 21;
114. Hobbs, Richard,Walsh and Green v UK 44 EHRR 54;
115. and Runkee and White v UK Application Nos 42949/98 and 53134/99, 25 July 2007. It should be added that the domestic law has been amended by now.
116. I am indebted to Magda Krzyzanowska-Mierzewska for this observation.
117. See the Resolution and Recommendation, supra n. 53 and n. 54 respectively.
118. Broniowski, supra n. 55 at para. 149.
119. Brannigan and McBride v UK A 258-B (1993);
120. EHRR 539 per Judge Martens, concurring opinion at para. 3.
121. See, for example, Christian Democratic People's Party v Moldova 2006-II; 45 EHRR 13.
122. This is not to suggest that before there had not been occasional Court scrutiny of this subject matter: See, for example, United Communist Party of Turkey v Turkey 1998-I; 26 EHRR 121.
123. Melnychenko v Ukraine 2004-X; 42 EHRR 39.
124. Madsen, 'From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics', (2007) 32 Law and Social Enquiry 137 at 144.
125. Harmsen, supra n. 36 at 23.
126. Krisch, supra n. 23 at 215.
127. Madsen, supra n. 113 at 147-8 (footnote omitted).
128. Under Article 33 of the ECHR, each Contracting State can complain about a violation of the Convention by another Contracting State. Until October 2008, only 22 applications by States were lodged in this form. But even this low number understates the usage of this procedure because there have been multiple applications triggered by one and the same alleged violation. In fact, only nine situations in different Contracting States have generated an interstate complaint under Article 24.
129. Professor S.A. de Smith, quoted by Seymour, 'The Extension of the European Convention on Human Rights to Central and Eastern Europe: Prospects and Risks', (1993) 8 Connecticut Journal of International Law 243 at 251.
130. Casado Coca v Spain A 285 (1994); 18 EHRR 1.
131. Luciani, 'Italie', in Iliopoulos-Strangas (ed), supra n. 11 at 217 (my translation).
132. Moreno Gómez v Spain 2004-X; 41 EHRR 40.
133. Krisch, supra n. 23 at 190.
134. López Ostra v Spain Series A303-C (1994); (1995) 20 EHRR 277.
135. Rubio Llorente, 'Espagne', in Iliopoulos-Strangas (ed), supra n. 11 at 163-4.
136. Ibid. at 165.
137. Von Hannover v Germany 2004-VI; 40 EHRR 1.
138. Ibid. at para. 64
139. Ibid. at para. 72.
140. See Smith, 'Pays scandinaves', in Iliopoulos-Strangas (ed), supra n. 11 at 273-4.
141. Sadurski, 'Accession's Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe', (2004) 10 European Law Journal 371.
142. See Sadurski, 'The Role of the EU Charter of Rights in the Process of Enlargement', in Bermann and Pistor (eds), Law and Governance in an Enlarged European Union (Oxford: Hart, 2004) 61 at 71-86.
143. See Sadurski, 'Charter and Enlargement', (2002) 8 European Law Journal 340.
144. As the authors of an article on the reasons for the popularity of the Convention in Poland observe, what many of the Strasbourg applicants want is 'for the Court to 'intervene' actively whenever the national authorities fail. Their model of the Court is that of a kind of Robin Hood justice which would step into domestic cases and put things in order ...', Dembour and Krzyzanowska-Mierzewska, 'Ten Years On: The Popularity of the Convention in Poland', (2000) 4 European Human Rights Law Review 400 at 413.
145. Moravcsik, 'The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe', (2000) 54 International Organization 217 at 220.
146. See text accompanying supra n. 85.
147. This governing majority lost the parliamentary election of late 2007, but President Lech Kaczynski - whose term of office lasts until 2010 - has been also part of this anti-Constitutional Tribunal tendency.
148. See more on these decisions, Sadurski, '"Solange, Chapter 3": Constitutional Courts in Central Europe - Democracy - European Union', (2008) 14 European Law Journal 1 at 32-33.
149. For a detailed description, see Kühn and Kysela, 'Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic', (2006) 2 European Constitutional Law Review 183 at 196-205.
150. Decision No. 375/2005 of 6 July 2005.
151. Decision No. 610/2005 of 14 November 205.
152. Mr Teodor Melescanu, vice-president of PNL (National Liberal Party).
153. By 'Solange story' I understand a tradition of resistance, by many European constitutional courts, to the supremacy of EU law over national constitutional systems on the basis that national constitutional courts are the ultimate guardians of democracy and the protection of constitutional rights. See Sadurski, supra n. 137 at 2-3.
154. On 27 April 2006, the Polish Constitutional Tribunal (Decision P1/05) found a provision of the Code of Criminal Procedure implementing the European Arrest Warrant (EAW) inconsistent with the constitutional prohibition of extradition of Polish citizens; at the same time, the Tribunal suspended the effects of its decision for 18 months (the maximum it was allowed to) in order to give the legislature enough time to sort out the problem. The politicians got the message, and as a result of a surprisingly smooth cooperation between the President, the governing coalition and the parliamentary opposition, the Constitution was duly amended on 8 September 2006, and by adding the appropriate exception to the general ban on extradition, the clash between the EAW and the Constitution was removed.
155. The Czech Constitutional Court annulled, in its decision PL US 50/04 of 8 March 2006, governmental regulations on production quotas for sugar producers on the basis that the government has exercised a competence, which had been already transferred to the European Community; for discussion, see Sadurski, supra n. 137 at 6-9.
156. Favoreu, La politique saisie par le droit (Paris: Economica, 1998) at 30.
157. As a random example, consider the case of the Romanian Constitutional Court. Research of the Court's case-law on its Internet portal shows that in the period 2004-2007, there have been, for each of these years, 108, 149, 202 and 224 cases containing references to the Convention. I am grateful for this research done by Dr Alina Stanciulescu.
158. Uitz, Taking Courts to Court: The Story of Compliance with Strasbourg Jurisprudence in Germany. (Unpublished manuscript 2008, on file with the author) at 2.
159. Interview with a judge of the Constitutional Tribunal, Warsaw, 1 June 2008.
160. Decision 146/2000.
161. See Krzẏ zanowska-Mierzewska, 'The Reception Process In Poland and Slovakia', in Keller and Stone Sweet (eds), supra n. 3 at 592.
162. Vasilescu v Romania 1998-III; 28 EHRR 241 (in this case, the ECtHR found a violation of Article 6 because it decided that giving certain judicial powers (regarding civil cases for restitution) to a public prosecutor amounted to a denial of 'access to tribunal').
163. See also Pantea v Romania 2003-VI; 40 EHRR 26 (here the Court found that the public prosecutor who orders pre-trial detention is not an 'officer' for the purposes of Article 5(3) of the Convention).
164. For example, Decision 108/1998 of 14 July 1998.
165. Popescu, supra n. 24 at Part 6.
166. K 21/05 of 18 January 2006.
167. Ibid. at Part 4 of the reasoning of the Tribunal.
168. Baczkowski v Poland 48 EHRR 19.
169. Ibid. at para. 70.
170. Ibid. at paras 39-42 and 71.
171. Ibid. at para. 100.
172. Ibid. at para. 27.
173. Ibid. at para. 100.
174. See, for example, Seymour, supra n. 118 at 259-62.
175. See, for example, Harmsen, supra n. 36 at 32 and 36;
176. and Greer, 'What's Wrong with the European Convention of Human Rights?', (2008) 30 Human Rights Quarterly 680 at 686.
177. Brown v Board of Education 347 U.S. 483 (1954).
178. Roe v Wade 410 U.S. 113 (1973).
179. Lemon v Kurtzman 403 U.S. 602 (1971).
180. The 1975 decision of German Federal Constitutional Court, discussed by Stone Sweet, Governing with Judges (Oxford: Oxford University Press, 2000) at 109-10.
181. The 1973 decision of GFCC discussed by Stone Sweet, ibid. at 86.
182. Such a claim has been made, famously, by the Court itself, see Loizidou v Turkey A 310 (1995); 20 EHRR 99 at para. 75, where the Court referred to 'the Convention as a constitutional instrument of European public order (ordre public)'.
183. See also Greer, supra n. 7 at 190 (the European Convention characterized as a constitution).
184. See Moderne, 'Rapport de synthèse', in Iliopoulos-Strangas, supra n. 11 at 360.
185. Raz, 'On the Authority and Interpretation of Constitutions: Some Preliminaries', in Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press) at 153-4.
186. This statement needs to be qualified. The Convention is entrenched in the sense that any changes require the unanimity of all Contracting States but, from the point of view of a citizen of a Contracting State, it is only as entrenched as the domestic requirements for a denunciation of the Convention are: Each State may 'denounce' the Convention after six months notice. But then, for those CoE Members who are also EU Members, the ECHR is also indirectly entrenched via EU law.
187. ETS No. 1, Statute of the Council of Europe, 5 May 1949.
188. Recommendation Rec(2004)6 of the Committee of Ministers, supra n. 54.
189. The New Zealand Bill of Rights Act of 1990 imposes a duty on all courts to interpret all the other statutes in accordance with the Bill (which, formally, is a statute); for a discussion, see Gardbaum, 'The New Commonwealth Model of Constitutionalism', (2001) 49 American Journal of Comparative Law 707 at 727-32.
190. Section 33 of the Canadian Charter of Rights and Freedoms (so called 'notwithstanding' clause).
191. On the basis of the Human Rights Act of 1998 (UK) certain specified higher courts may make a declaration of incompatibility of the legislation with the ECHR; in such a case, a fast-track procedure may be used to amend such legislation.
192. Keller and Stone Sweet, supra n. 97 at 703.
193. Seymour, supra n. 118 at 254.
194. For more on the legitimacy dilemmas and conundrums of constitutional courts in CEE, see Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht: Springer, 2005) at 27-63.
195. Interview with a judge of Constitutional Tribunal of Poland, Warsaw, 1 June 2008.