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Mechanisms of influence

Explore the mechanisms of influence for national judges in the European Court of Human Rights system. Understand the importance of teamwork, mutual influence, and communication among judges to enhance judicial impact. Discover how European concepts and ideas merge with national practices to create effective and autonomous decisions.

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Mechanisms of influence

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  1. Mechanisms of influence John Bell (Cambridge)

  2. Need to build a team • ECtHR is not integrated into judicial hierarchy • decisions, as such, do not upset res judicata • national courts can’t refer issues for decision • National judges are front line implementers of Convention

  3. Problems for national judges • To understand and emulate decisions and reasons • different style: how to read and then translate into national style • reasons for the reasons • assertion or justification? • formal or policy-based arguments? (Lasser) • Building commitment • divergent policy/interpretative choices • do they try to understand our decisions before they criticise them? • commissaire du gouvernement • Osman and Z v UK

  4. How does Strasbourg reach out? • Conferences by judges of ECtHR • part of judicial continuing education • chance for exchange of views • No forum for national and ECtHR judges to debate common problems • Visits to ECtHR, e.g. Lord Mackay • In short, insular, remote, relying on text of decisions

  5. Visits to national judges National judges visit court Secondment into cabinets at Court Explain decisions through Advocate-General and rapporteur Visits to national judges No budget for visits No cabinets, merely Registrar No Advocate-General, but independent opinions Luxembourg v Strasbourg

  6. Are national judges part of team? • Awareness through national training • Internal debate • Priority of national law? • Status conferred by applying European law • Natural instinct for conform interpretation • Ability to deliver changes • what can judges achieve? • when does it have to be left to legislator? • judges as agenda setter

  7. Team-work: Mutual Influence • Sources of ideas • European Convention needs to build on national concepts and ideas • Needs to produce autonomous ideas applicable in all systems • Benchmark: not lowest common denominator, but most effective • Communication/dialogue • How far are national judges inspired? • willingness to apply • spill-over effect • How far is ECtHR willing to respond to national judges?

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