Allies and counterbalances : Constitutional Courts and the European Court of Human Rights: a comparative perspective

This paper investigates and advocates for the potentials of a direct engagement with the European Convention on Human Rights by constitutional courts through a comparative analysis encompassing six Western European countries. It first shows that, although it does not generally enjoy constitutional rank, the Convention serves as a standard for constitutional review, as constitutional courts have incorporated it into their constitutional yardsticks through various techniques. It then stresses that this has not molded constitutional courts into mere agents of the Strasbourg court, because they have also developed a series of limitations to avoid a mechanical transposition of Strasbourg case-law into the domestic legal order. Finally, it highlights the benefits of the Convention’s integration into the constitutional yardstick by arguing that this enhances domestic compliance with the Convention, strengthens the legitimacy of the Convention system, and fosters judicial dialogue. Overall, by directly engaging with the ECHR and with Strasbourg case-law, constitutional courts can play a pivotal role in keeping the balance between the supranational protection of human rights and the national margin of appreciation.