On the lack of a constitutional court and the ‘constitutionalisation’ of the ECtHR
No we do not have a constitutional court. But we do have the European Convention, and the European Court of Human Rights. Which, by the way, also has an increasingly ‘constitutional’ task and engages in ‘constitutional reasoning’.
We Dutch jurists have to explain a lot while abroad. At least, when we meet foreign jurists, especially constitutional lawyers, and—by accident or not—enter into a discussion on the constitutional particularities of our respective systems. “So, you guys do have a constitution, but no constitutional court? And acts of parliament cannot be tested against the constitution?” No, we don’t. No, they cannot.”
Last week in Heidelberg, things were no different. Attending a meeting on the interesting Schumpeter project on comparative constitutional reasoning that is based at the Max Planck Institute for Comparative and International Law, the topic was of course hard to avoid. Numerous constitutional law experts from different countries were present who will all write a country report on the reasoning of ‘their’ constitutional courts. That there would be no report on the Netherlands was something that required explanation. “Luckily”, I always emphasize, “we have the European Convention, and the European Court of Human Rights, in case we are in need of fundamental rights protection”.
Interestingly, whereas the Netherlands is obviously not, the European Court of Human Rights is included in the constitutional reasoning project. And even though the differences between—for instance written and unwritten—constitutions resulted in some debate on the proper definitions to be used as the starting point for the research, that what the European Court is doing is something ‘constitutional’, was not a matter of discussion. And rightly so, if you ask me.
Speaking of the ‘constitutional task’ of the Court, it is worth mentioning a very recent article by Greer and Wildhaber called: “Revisiting the Debate about ‘constitutionalising’ the European Court of Human Rights”. Discussing both the ‘individual justice’ and ‘constitutional justice’ framework, the authors think the latter holds most promise for the European Court, albeit combined with the idea of ‘pluralism’. This means that “cases should be selected and adjudicated in a much more strategically focused manner than at present” (p. 684), i.e., the Court should have more control over its own docket, not least because most national (constitutional) courts work with a restricted selection of cases as well. Moreover, the European Court “should adjudicate the tiny fraction of the total number of applications it receives in a more ‘constitutional’ or principled manner … by seeking the best, and most consistent, interpretation of the Convention as a whole …” (p. 686).
Especially in light of the docket crisis, further ‘constitutionalisation’ of the European Court is desirable. However, when the Court really limits its review to the most serious, and structural violations, what does this mean for its role in the Netherlands, where at the moment the ECtHR’s case law often serves as a valuable substitute for national constitutional arguments in virtually every conceivable case? In any case, so long as we lack our own constitutional court, the constitutional developments at the ECHR level provide ample things to talk and write about.