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Nudging Domestic Judicial Reforms from Strasbourg: How the European Court of Human Rights shapes domestic judicial design

Author:

David Kosař

Masarykova Univerzita Brno, CZ
About David
Since 2016: Head of the Judicial Studies Institute (built around ERC StG), Faculty of Law, Masaryk University Since 2012: Assistant Professor at the Department of Constitutional Law and Political Science, Faculty of Law, Masaryk University 2013: NYU School of Law (New York) J.S.D. in Law (Judicial Accountability, supervisor: Stephen Holmes); 2009: Masaryk University (Brno) Ph.D. in Public International Law (Non-State Agents of Persecution, supervisor: Dalibor Jílek); 2007: CEU (Budapest) LL.M. in Human Rights Law (Freedom of Speech and Permissible Degree of Criticism of Judges, supervisor: Aharon Barak); 2004: Masaryk University (Brno) M.A. (Law) Constitutional Court of the Czech Republic (2012–2015); Supreme Administrative Court of the Czech Republic (2007–2012); External Lecturer at the Deaprtment of Intenational Law and European Law at the Faculty of Law of Masaryk University (2005, 2007-2009) 2016-2021 (5 years) ERC Starting Grant “JUDI-ARCH – The Rise of Judicial Self-Government: Changing the Architecture of Separation of Powers without an Architect” (1,5 million EUR) 2014-2017 (3 years) Jean Monnet Module Award for developing a new course “European Constitutional Law & Politics” (17.976 EUR); 2014-2015 (1 year) Hugo Grotius Foundation Grant for an interactive website “Atlas of the Czech Constitutionalism” (187.000 CZK, approx. 7.480 EUR); 2013-2015 (3 years) Czech Grant Agency Grant, “JUDIT – Judicial Discipline in Transition” (997.000 CZK, approx. 40.000 EUR) 2012-2014 (2 years) Marie Curie Career Integration Grant (CIG), “JANE – Judicial Accountability in New Europe”, Marie Curie Actions, Grant No.: PCIG10-GA-2011-303933 (50.000 EUR);
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Abstract

This article discusses to what extent and how the European Court of Human Rights (ECtHR) has initiated and engaged in domestic judicial reforms. It shows that the judgments of the Strasbourg Court, rather than having effects only with respect to the individual whose rights have been violated, have much deeper structural effects in the design and operation of domestic judicial systems. This article argues that this phenomenon goes rather unnoticed, but it has deep implications for both the developing and developed European democracies. To demonstrate this phenomenon, this article assesses the impact of the ECtHR on three judicial design issues. First, it illustrates how the ECtHR has challenged the role of the advocates general. Second, it explains how the ECtHR has gradually curbed the jurisdiction of military courts both over civilians and over military officers, which has brought these courts to the brink of their abolition. Finally, it outlines how the ECtHR in its judgments regarding the disciplining of judges empowers the judiciary at the expense of other political institutions within the State. Based on the analysis of these three judicial design issues, we conclude that the Strasbourg Court is affecting the internal architecture of domestic judiciaries as it gradually endorses the unification of court administration and changes the power structures within the judiciary.
DOI: http://doi.org/10.18352/ulr.368
How to Cite: Kosař, D., (2017). Nudging Domestic Judicial Reforms from Strasbourg: How the European Court of Human Rights shapes domestic judicial design. Utrecht Law Review. 13(1), pp.112–123. DOI: http://doi.org/10.18352/ulr.368
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Published on 29 Mar 2017.
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