Beyond Compliance – Judicial Implementation of the Strasbourg Case Law

Domestic courts belong among the most important domestic actors who hold the keys to the effective and legitimate functioning of the Strasbourg human rights system. The ECtHR fills in the gaps in the provisions of the European Convention with its interpretation and domestic courts, as its agents but also national actors embedded in domestic political and legal interactions, can help it foster the new rules established through practice in a life. The cooperation of domestic courts is all the more important looking at the composition of the ECHR treaty system which includes established democracies, but also (post-)transitional democracies and states where the fundamental norms of democracy and the rule of law have been failing. Therefore, the aim of this paper is to move beyond the traditional compliance debates and analyse more broadly how the ECtHR case law affects the domestic jurisprudence and how it permeates judicial reasoning of national courts. Using the example of the Czech Republic, the paper therefore proposes a new approach how to trace the use of the ECtHR case law references in national courts’ decisions. It builds on a proposition that judicial compliance with the ECtHR case law needs to be embraced on three different levels, macro, meso, and micro, which allows us to see the breadth of using the ECtHR case law in domestic judicial reasoning and to scrutinize what effects the ECtHR case law has on the ground – in the day-to-day practice of domestic courts. First, the macro-level analysis uncovers general patterns in the ECtHR case law references and their development in time and indicates most frequently cited cases and the position of domestic judgments with rich ECtHR’s citations within the rest of the case law. It searches for correlations between the changes in citation patterns and internal constitutional, institutional, and personnel development in judiciary. At the meso-level, the paper makes use of a sophisticated hand-coding and uses a new typology that answers how the domestic judges make use of the ECtHR references and what the ECtHR rulings serve to in the domestic judicial argumentation. Micro-level understanding of individual most significant cases helps to draw the overall picture.