Publication details
Please, Disregard Us: When a Minority of the European Court of Human Rights Declares its own Court to be Ultra Vires
| Authors | |
|---|---|
| Year of publication | 2023 |
| Type | Article in Periodical |
| Magazine / Source | European Law Review |
| MU Faculty or unit | |
| Citation | |
| Web | Open access časopisu |
| Keywords | Administration of justice; Courts' powers and duties; European Court of Human Rights; Jurisprudence; Subsidiarity; Ultra vires |
| Attached files | |
| Description | Even in the tumultuous European judicial landscape of today, it is somewhat unusual to see a minority of a court to declare its own court to be ultra vires and to instruct the losing respondent state to disregard the judgment of the majority. That is nonetheless exactly what happened, in such a sharp and explicit manner for the first time, before the European Court of Human Rights in Grosam v Czech Republic. This contribution captures the story of that extraordinary case. It starts by explaining national law and practice and mapping out the procedure that led to the judgment. It then critically examines the implications of the judgment, making three broader arguments. First, the majority in Grosam violated the principles of subsidiarity and acted indeed ultra vires. Second, it extended the understanding of judicial independence beyond any reasonable limits. In doing so, the judgment fosters an extreme vision of judicial insulation in the name of judicial independence, both at the stages of judicial appointments, but also by excluding any and all lay persons from participation in judicial decision-making. Third, Grosam exposes structural shortcomings of the internal functioning of the European Court of Human Rights. This article therefore closes with thoughts on potential institutional changes that could be contemplate |
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