State Obligations in the European System

Abstract

The issue: In March 2015, the Italian Constitutional Court judgment on the Varvara case concluded that only consolidated law (diritto consolidato) of the Strasbourg Court is binding erga omnes in the domestic legal order. Although the notion of consolidated law is not clearly established, it includes at least Grand Chamber and pilot judgments and eventually committee judgments. Chamber judgments are binding only inter partes and have no other effect in similar cases sharing the same structural problems. In July 2015, the Russian Constitutional Court delivered a judgment on the Federal Law on the Accession of the Russian Federation to the ECHR, which affirmed that the judgments of the Strasbourg Court would not be enforceable if and when they contradict the Russian Constitution, according to its reading by the Russian Constitutional Court. This line of domestic case law puts in question the legal force of the European Court’s case law and of the European Convention itself. Other cases in UK and German jurisdictions raise similar concerns. The tense relationship between some Supreme and Constitutional Courts and the European Court raises the question of principle: what are the obligations of the contracting parties to the Convention to implement the European Court’s judgments?