Judicial Passivism at the European Court of Human Rights
| Author | Pierre Thielbörger |
| Published date | 01 September 2012 |
| Date | 01 September 2012 |
| DOI | http://doi.org/10.1177/1023263X1201900301 |
| Subject Matter | Editorial |
19 MJ 3 (2012) 341
EDITORIAL
JUDICIAL PASSIVISM AT THE EUROPEAN
COURT OF HUMAN RIGHTS
P T*
In late 2011, the law faculty of Maastricht University held a conference on Judicial
Activism at the Cou rt of Justice of the European Union.1 In some respects, t he European
Court of Human Rig hts (‘the Court’ or ‘ECtHR’) in Strasbourg might be acc used of the
same practice.
I will arg ue in this short piece t hat the ECtHR tends, in some of its decisions,
towards an opposite,2 yet equa lly important phenomenon: judicial passiv ism. Like its
counterpar t, judicial act ivism, this much les s studied phenomenon is hard to de ne, but
involves judges and courts that undergo what is required by their mand ate. ey leave
decisions to the executive or legislatu re that should be decided by the judiciary, or they
simply refuse to deliver a substantive dec ision at all.
Two recent judgments of the European Court of Human R ights will ser ve as examples
of such passivism at the Cour t: Stübing v. Germany and Koch v. Germany. Both cases
show that the Court’s general ly welcome inclination not to monopolize al l decision-
making, but to have tru st in the judicial orders of the Member States , is concerningly
being developed into a denial by t he Court to give its opinion even on questions of
general and principled import ance.
§1. INCESTUOUS INTERCOURSE BETWEEN SIBLINGS: THE
CASE OF STÜBING V. GERMANY
Long before our time, the ancient Roman s and Greeks found incest, sex ual intercourse
between close relatives, repugna nt, dooming and shameful. Oedipus trag ically fell for his
mother Jocasta. e Gods punished the bir th of the beautifu l Adonis, which resulted from
* Professor as Junior professor for International Law a nd International Humanit arian Law, Institute for
International L aw of Peace and Armed Con ict (IFHV) and Law Facu lty, Ruhr-University Bochum .
1 Conference: ‘Judicia l Activism at t he Court of Justice : Causes, Respons es and Solutions’, held at the Law
Faculty of Maa stricht University on 10 and 11Octobe r 2011.
2 Some authors see judic ial passivism r ather as one form of judicia l activism, s ee for instance M. Daw son,
E. Muir and B. de Witte, ‘Introduction: e European Court of Justice as a pol itical actor’, in M.
Dawson, E. Muir a nd B. de Witte (eds.), Judicial Activism at the European Court of Justice: Causes,
Responses a nd Solutions (Edward E lgar Publishing, for thcoming 2013).
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