Dismantling judicial partnership in Europe: The role of domestic courts’ internal configuration

Judicial partnership between the European Court of Human Rights (the ECtHR) and constitutional courts in Central and Eastern Europe (CEE) has been in flux. After the Cold War, the new CEE constitutional courts were seen as the crucial domestic interlocutors connecting the national legal systems with the European human rights regime. More recently, however, the partnership between these courts and the ECtHR has changed its trajectory – in some cases to the extent of a U-turn. Nonetheless, it is far from a neat uniform story. There are considerable variances across CEE countries and across policy issues within these countries. The constitutional courts’ current approaches range from outright resistance to the ECtHR to judicial avoidance of ECHR issues to business as usual. I argue that explaining these trends requires analysing the internal configuration of national constitutional courts. More specifically, I show how the strength and scope of a transnational judicial partnership is co-determined by organizational practices and arrangements inside constitutional courts. These can be used to build a judicial partnership but also manipulated to dismantle it. Building on the existing theories of judicial agency, I demonstrate this claim on a comparative inquiry of the most similar systems: Czechia, Hungary, Poland, and Slovakia. In order to understand the complex and discrete processes of building and dismantling a judicial partnership, I combine process tracing, legal doctrinal analysis, and semi-structured qualitative interviews with domestic stakeholders (current and former judges, clerks, and constitutional lawyers). While this paper builds on the existing theories of compliance with and resistance to international courts, it contributes to the field in three ways. First, it adds to the theories of compliance with international law by shifting the focus from domestic politics to the level of domestic courts’ internal configuration. Second, it complements the burgeoning literature on democratic decay in CEE by focusing on the still under-researched ECHR dimension of backsliding. Third, it contributes to the literature on constitutional resilience by identifying (some of) the determinants of success/failure of international commitments as mechanisms for locking in democracy.