CELLS Second Century Guest Seminar: ‘The Constitutionalization of the European Court of Human Rights, and ‘Pilot Judgements’’, Professor Wojciech Sadurski
Speaker: Professor Wojciech Sadurski, University of Sydney
Chair: Dr Jen Hendry, University of Leeds
The accession of Central and East European States into the European Convention of Human Rights system was both a threat and a promise to the system. The threat resulted not only from the substantial increase of the number of Member States and that of the case-load, but also from the demise of a consensus which was, originally, presupposed by the system of protection of human rights in Western Europe: original members of the Council of Europe (CoE) were "like-minded" and the Convention system did not represent a challenge to their internal apparatus of human rights protection: all this changed after the enlargement of CoE.
This paper, however, focuses on a promise: a possibility for the European Court of Human Rights to abandon once and for all the fiction of it being merely a sort of super-appellate court which scrutinizes individual decisions rather than laws in Member States of CoE. This shift towards a quasi-constitutional role, going beyond the simple identification of wrong individual decisions so as to point to systemic legal defects, was triggered by systemic problems within the new Member States, while also facilitated by collaboration between the European Court and national constitutional courts.
The emergence of so-called "pilot judgments" is the best and most recent illustration of this trend. The way in which a national court may form a de facto alliance with the European Court effectively "pierces the veil of the State", and positions the European Court as a quasi-constitutional judicial body at a pan-European level.
Professor Sadurski will refer to his recently published monograph, ‘Constitutionalism and the Enlargement of Europe’ (OUP 2012).
Professor Sadurski is the Challis Chair in Jurisprudence at the University of Sydney, and an expert in the fields of legal theory, political philosophy, comparative constitutionalism, the constitutionalism of Central & Eastern Europe, and human rights. He has published widely in those areas, including his recent monograph.
From 1999-2009, Professor Sadurski was Professor of Legal Theory and Philosophy of Law in the Department of Law, European University Institute (EUI) in Florence. He holds a Professorial chair in the University of Warsaw's Centre for Europe and is a visiting Professor at both the University of Trento and in Cardozo Law School in New York.
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