Managing Judicial Innovation in the European Court of Human Rights

de Londras, Fiona; Dzehtsiarou, Kanstantsin

doi:10.1093/hrlr/ngv020

Managing Judicial Innovation in the European Court of Human Rights

de Londras, Fiona; Dzehtsiarou, Kanstantsin

Authors

Fiona de Londras

Kanstantsin Dzehtsiarou

Abstract

Since its establishment, the European Court of Human Rights has developed into a constitutionalist actor within and beyond the continent of Europe; a development that is in no small part due to judicial innovations, such as evolutive interpretation. Such innovation has resulted in a tension between the Court and the contracting parties that may conceivably call into question states’ diffuse support for the Court. We argue that this tension is addressed by the Court by means of a nascent model of judicial self-restraint discernible from the Court’s docket management, its cognisance of non-legal factors in particularly contentious cases and its use of consensus-based interpretation. While arguably necessary, such a model is not cost-free; rather, it may have implications for the quality of the Court’s decision-making and its standing in the eyes of other stakeholders, such as non-governmental organizations and complainants.

Citation

de Londras, F., & Dzehtsiarou, K. (2015). Managing Judicial Innovation in the European Court of Human Rights. Human Rights Law Review, 15(3), 523-547. https://doi.org/10.1093/hrlr/ngv020

Journal Article Type	Article
Online Publication Date	Aug 19, 2015
Publication Date	Sep 1, 2015
Deposit Date	Jan 28, 2015
Publicly Available Date	Aug 19, 2017
Journal	Human Rights Law Review
Print ISSN	1461-7781
Electronic ISSN	1744-1021
Publisher	Oxford University Press
Peer Reviewed	Peer Reviewed
Volume	15
Issue	3
Pages	523-547
DOI	https://doi.org/10.1093/hrlr/ngv020
Keywords	European Court of Human Rights, Judicial self-restraint, Judicial innovation, Human rights, European consensus, Admissibility.
Related Public URLs	https://research.birmingham.ac.uk/portal/en/publications/managing-judicial-innovation-in-the-eropean-court-of-human-rights(9074fa25-fc04-4d8d-892e-13812fb82e75).html

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This is a pre-copyedited, author-produced PDF of an article accepted for publication in Human Rights Law Review following peer review. The definitive publisher-authenticated version de Londras, Fiona and Dzehtsiarou, Kanstantsin (2015). Managing Judicial Innovation in the European Court of Human Rights. Human Rights Law Review 15(3): 523-547 is available online at: http://dx.doi.org/10.1093/hrlr/ngv020