SINCE THE TURN OF THE MILLENNIUM, the European Court of OF HUMAN RIGHTS HUMAN OF COURT EUROPEAN THE Human Rights has been the transnational setting for a European-wide ‘rights revolution’. One of the most remarkable characteristics of the European Convention of Human Rights and its highly acclaimed judicial tribunal in Strasbourg is the extensive obligations of the contracting states to give observable effect to its judgments. This book explores the domestic execution of the European Court of Human Rights’ judgments and dissects the variable patterns of implementation within and across states. It also relates how marginalised individuals, civil society and minority actors strategically take recourse in the Strasbourg Court to challenge state laws, policies and practices. These bottom-up dynamics influencing the domestic implementation of human rights have been little explored in the scholarly literature until now. By adopting an inter-disciplinary perspective, this volume seeks to go beyond the existing, mainly legal and descriptive studies and contributes to the flourishing scholarship on human rights, courts and legal processes, by Edited and their consequences for national politics. Dia Anagnostou is Assistant Professor of Comparative Politics, in THE EUROPEAN COURT Panteion University of Social Sciences, and Senior Research Fellow at the Hellenic Foundation of European and Foreign Policy (ELIAMEP) in Dia Anagnostou Athens. She is a co-editor of Rights in Pursuit of Social Change: Legal OF HUMAN RIGHTS Mobilisation in the Multi-Level European System (2013). Implementing Strasbourg’s Judgments on Domestic Policy Edited by Dia Anagnostou Cover image: All Distances by Holly Van Hart, Oil painting on canvas, 38" x 18", www.hollyvanhart.com. Cover design: riverdesign.co.uk ISBN 978-0-7486-7057-4 www.euppublishing.com The European Court of Human Rights Implementing Strasbourg’s Judgments on Domestic Policy Edited by Dia Anagnostou AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd iiiiii 226/03/20136/03/2013 111:531:53 © in this edition, Edinburgh University Press, 2013 © in the individual contributions is retained by the authors Edinburgh University Press Ltd 22 George Square, Edinburgh EH8 9LF www.euppublishing.com Typeset in 10/12pt Goudy Old Style by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 0 7486 7057 4 (hardback) ISBN 978 0 7486 7058 1 (webready PDF) ISBN 978 0 7486 7059 8 (epub) ISBN 978 0 7486 7060 4 (Amazon ebook) The right of the contributors to be identifi ed as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988. AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd iivv 226/03/20136/03/2013 111:531:53 Contents The contributors vii Acknowledgements ix Introduction: Untangling the domestic implementation of the European Court of Human Rights’ judgments 1 Dia Anagnostou PART I: INSTITUTIONAL DYNAMICS OF DOMESTIC IMPLEMENTATION 1. The interrelationship between domestic judicial mechanisms and the Strasbourg Court rulings in Germany 27 Sebastian Müller and Christoph Gusy 2. Between political inertia and timid judicial activism: the attempts to overcome the Italian ‘implementation failure’ 49 Serena Sileoni 3. The reluctant embrace: the impact of the European Court of Human Rights in post-communist Romania 71 Dragos, Bogdan and Alina Mungiu-Pippidi PART II: LEGAL MOBILISATION AND THE POLITICAL CONTEXT OF IMPLEMENTATION 4. European human rights case law and the rights of homosexuals, foreigners and immigrants in Austria 97 Kerstin Buchinger, Barbara Liegl and Astrid Steinkellner 5. Political opposition and judicial resistance to Strasbourg case law regarding minorities in Bulgaria 122 Yonko Grozev 6. Under what conditions do national authorities implement the European Court of Human Rights’ rulings? Religious and ethnic minorities in Greece 143 Dia Anagnostou and Evangelia Psychogiopoulou 7. A complicated affair: Turkey’s Kurds and the European Court of Human Rights 166 Dilek Kurban and Haldun Gülalp AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd v 226/03/20136/03/2013 111:531:53 vi The European Court of Human Rights 8. The European Court of Human Rights and minorities in the United Kingdom: catalyst for change or hollow rhetoric? 188 Kimberley Brayson and Gabriel Swain 9. Politics, courts and society in the national implementation and practice of European Court of Human Rights case law 211 Dia Anagnostou List of European Court of Human Rights judgments and European Commission on Human Rights cases 232 Index 238 AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd vvii 226/03/20136/03/2013 111:531:53 The contributors Dia Anagnostou (PhD Comparative Politics) is an assistant professor in the Department of Public Administration, Panteion University of Social and Political Sciences and a senior research fellow at the Hellenic Foundation for European and Foreign Policy (ELIAMEP) in Athens. Dragos, Bogdan is a practising lawyer who has worked in the Romanian delegation at the European Court of Human Rights in Strasbourg. Kimberley Brayson is a postgraduate research student at Queen Mary, University of London. She is working on a doctoral thesis on human rights and Muslim women in Europe. Kerstin Buchinger (PhD Legal Studies) is a law clerk at the Austrian Constitutional Court. Before that, she was a legal researcher at the Ludwig Boltzmann Institute of Human Rights in Vienna with a research focus on asylum law and anti-discrimination issues. Yonko Grozev is a legal expert on human rights and programme director of the Centre for Liberal Strategies in Sofi a. Haldun Gülalp is Professor of Political Science and director of the Center for Global Studies at Yıldız Technical University in Istanbul. Christoph Gusy is Professor of Public Law, Constitutional Law and Constitutional History at Bielefeld University. Dilek Kurban (MA, JD Columbia Law School) is a researcher and pro- gramme offi cer at the Democratization Program of the Turkish Economic and Social Studies Foundation (TESEV) in Istanbul. Barbara Liegl (MA Political Science) is Resident Twinning Adviser for the project ‘Establishing a Comprehensive System of Anti-discrimination Protection’ in Zagreb, Croatia, on behalf of the Ludwig Boltzmann Institute of Human Rights (Vienna). Sebastian Müller (PhD Human Rights Law) is a member of the Faculty of Law at Bielefeld University. Alina Mungiu-Pippidi is Professor of Democracy Studies at the Hertie School of Governance in Berlin. AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd vviiii 226/03/20136/03/2013 111:531:53 viii The European Court of Human Rights Evangelia Psychogiopoulou (PhD European Law) is a research fellow at the Hellenic Foundation for European and Foreign Policy (ELIAMEP) in Athens. Serena Sileoni (PhD Public Comparative Law) is a lecturer in public law at the Faculty of Political Science and a research fellow in constitutional law at the Faculty of Economics, University of Florence. Astrid Steinkellner (MA Legal Studies) is a legal researcher at the Ludwig Boltzmann Institute of Human Rights in Vienna on the topics of human rights in development cooperation and business and European human rights protection. Gabriel Swain has worked as a researcher and consultant for the Council of State Governments, an American think tank. AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd vviiiiii 226/03/20136/03/2013 111:531:53 Acknowledgements I would like to acknowledge the generous fi nancial support provided by the European Commission’s 6th Framework Programme, which funded the research for this volume as part of the JURISTRAS project (‘The Strasbourg Court, Democracy and Human Rights: Patterns of Litigation, State Implementation and Domestic Reform’, contract no. FP6-028398, 2006–9). Further information on the project’s fi ndings can be found at http://www.juristras.eliamep.gr. I would like to especially thank Angela Liberatore, the European Commission’s project offi cer, whose enthusiastic support for the subject of this research was from the start and throughout the project extremely encouraging and motivating. This book was originally conceived at a project meeting in Strasbourg in June 2009 where its basic structure was also defi ned. As so commonly happens with collective volumes, it has taken much longer to complete it than was originally planned, partly due to some unpredictable setbacks along the way. Since then, the rapidly increasing case law of the European Court of Human Rights and changes in the state of execution of the judgments under study necessitated substantial and constant updating of the country-based chapters. I would like fi rst of all to thank the contributors to this volume, who have sustained an unmitigated interest in and commitment to this book project during its lengthy process of preparation. They were extremely responsive throughout our collaboration, being willing to revise their chap- ters a number of times without losing their patience or temper. I would also like to thank John Watson, commissioning editor at Edinburgh University Press, who believed in the value of this book project from the beginning, and his excellent support team, among them Rebecca Mackenzie, project manager, and Eddie Clark, managing desk editor. Special thanks go to the artist Holly van Hart from the San Francisco Bay area, who once again has kindly given her permission to use one of her paintings, All Distances, for the book cover. Even though we have never met in person, her paintings formed the bridge that brought us into contact, reifying their underlying concept about how we are all connected across nations, dis- tances, time and cultures. The bulk of the editorial and writing work on my part was completed during a Marie Curie fellowship at the Law Department of the European University Institute in Florence in 2010–12. It provided a highly stimulating and conducive environment for thinking about human rights in Strasbourg AANAGNOSTOUNAGNOSTOU PPRINT.inddRINT.indd iixx 226/03/20136/03/2013 111:531:53 x The European Court of Human Rights and Europe, as well as an ideal place for research and writing, for which I can only be grateful.