Informed Decision-Making: The Comparative Endeavours of the Strasbourg Court
| Author | Kanstantsin Dzehtsiarou,Vasily Lukashevich |
| Date | 01 September 2012 |
| Published date | 01 September 2012 |
| DOI | 10.1177/016934411203000303 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 30/3, 272–298, 2012.
272 © Netherland s Institute of Human R ights (SIM), Printed in t he Netherlands.
PART A: ARTICLES
INFORMED DECISION-MAKING:
THE COMPARATIVE ENDEAVOURS
OF THE STRASBOURG COURT
K D and V L*, **
Abstract
e article explores the use of comparative surveys in judgments of the European Court
of Human Rights (ECtHR). It argues that the inclusion of a comparative surve y serves an
informational purpose that m ay increase the substantive legitimacy of ECtHR r ulings. e
article aims to provide a broad, however preliminary account of the use of comparative
data by focusing on a number of per tinent doctrinal, meth odological, and practical i ssues.
Keywords: comparative law; decision-mak ing process; European C ourt of Human
Rights; interpretat ion; judicial reasoning
1. INTRODUCTION
e nature of the European Court of Human Rights (ECtHR or Court) as an
international judicial i nstitution is predetermined by the necessit y to seek precise and
consistent reasoning for part icular outcomes in individual ca ses. However, the norms
of the European Convention of Human Rig hts (ECHR) are frequently abstract and fa r
from being straig htforward. When the wording of the ECHR is not precise enough
the Court has to look for additional sources of inspiration such as t he laws of the
* Dr. Kanstantsi n Dzehtsiarou , MA (Sussex), PhD (UCD). Lectu rer in law (University of Su rrey),
k.dzehtsiarou@surrey.ac.uk.
Vasily Lukashev ich, lawyer in t he European C ourt of Human R ights, LLM i n Comparative
Constitution al Law, SJD Candid ate in Comparat ive Constitution al Law (Central Eu ropean
University, Budapest , Hungary), vasily.luka shevich@echr.coe.i nt.
All opinions e xpressed by the author s are personal and do no t necessaril y reect the ocia l position
of the European C ourt of Human Rig hts.
e authors would like to acknowled ge support of Lech Ga rlicki, Françoise Tulkens, Ján Ši kuta,
Corneliu Bîrsa n, Dean Spielmann , Bostjan Zupančič , Anatoly Kovler, and Michael O’Boyle , as well
as the assist ance of Anna Austin , Graeme Hall and Dr. Bria n Flanagan.
** Contact emai l address: k.dzeht siarou@surrey.ac.uk
Informed Deci sion-Making: the Comp arative Endeavours of t he Strasbourg Cour t
Netherlands Q uarterly of Human R ights, Vol. 30/3 (2012) 273
Contracting Parties,1 relevant international treat ies,2 interna l developments within
the respondent State 3 as well as other sources. e Court has deployed these sources
to clarify t he meaning of the ECHR and the Protocols, w hich are the only ones legally
binding and support a par ticular outcome of a case and, therefore, such sources s erve
a persuasive purpose emphasiz ing particular interpretat ions.
is paper argues t hat alongside the classical d istinction bet ween binding and
persuasive legal sources t he Court uses comparative data, prepared i n its comparative
law report, for an informational purpose. A comparative law report does not
advocate a particu lar approach but rather presents a spectrum of possible outcomes
of a particula r issue.4 Such reports inform t he Court about the context i n which a
particul ar legal phenomenon operates in dierent European countries.
One can suggest that i f a comparative survey re veals a trend in Europe t hen such
a survey is more likely to be used for a persuasive purpose. However, deployment of
comparative law for a persuasive purpose is not clea rly dependent on whether the
comparative survey revea ls a common European trend in relation to a part icular legal
issue. Sometimes, a lack of consensus can justif y the Court’s reluctance to intervene
and therefore supports a broader margi n of appreciation.5
Currently, comparative law reports are prepared for al most all Grand Cha mber
cases6 as well as for some cases dealt w ith by the Chambers. Research is carried out
upon a request from the Judge-Rapporteur7 by the Research Division of the Cour t,
which operates within the Court’s Registry. e Judge-Rapporteur frames the
questions and the questions a re then forwarded by the Research Division to national
lawyers working at the Court, who each prepare a report summarising the law and
practice in their res pective countries. Each national repor t is then signed by the judge
of the ECtHR elected in respect of the country concerned . Aerwards, the national
reports are compiled by the Resea rch Division in a composite report which is then
1 See, ECtHR Taxque t v. Belgium, 16November 2010 (Appl.no. 926/05).
2 See, ECtHR M. S.S. v. Belgium and Greece, 21Ja nuary 2011 (Appl.no. 30696/09); ECtHR Neulinger
and Shuruk v. Switze rland, 6July 2010 (Appl.no 41615/07).
3 See, ECtHR Du dgeon v. the United Kingdom , 23 September 1981 (Appl.no. 7525/76) discussi ng
the reform of the cr iminal legislation conc erning homosexualit y and application of these laws in
practice.
4 Judge Garlick i maintained t hat comparative ana lysis can inform t he Court about pos sible solutions
to a particu lar legal issue . Dzehtsiarou, K., Int erview with Judg e of the ECtHR Lech Garlick i (ECtHR,
Strasbourg , 2009). For the purpose s of this paper thi rteen judges of the ECt HR were interviewed by
the rst mentione d author in Strasbourg and F lorence in 2008–2010. All inter views were digital ly
recorded and scrip ted. For the summary of s ome interviews see Dze htsiarou, K., ‘Consensus f rom
within t he Palace Walls’ (September 17, 2010). UCD Working Papers in Law, Criminology & S ocio-
Legal Studies Research Paper No.4 0/2010, available at: ssrn .com/a bstr act=1678 424.
5 See, for example ECt HR Lautsi and others v. Italy, 18March 2011 (Appl.no. 30814/06), at par a. 70.
6 Dzehtsiarou, K ., Interview with Judg e of the ECtHR Ján Šikuta (ECtHR, S trasbourg, 2010).
7 A Judge-Rapporteur is a judg e appointed by the Sec tion President according with Ru le 49 which
provides that where a n application is made und er Article34 of the Convent ion and its examin ation
by a Chamber or a Comm ittee seems justied, t he President of the Section to which t he case has
been assigned s hall designate a judge a s Judge-Rapporteur, who shall examine t he application.
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