Judicial Tactics in the European Court of Human Rights

Abstract The European Court of Human Rights (ECHR) has been criticized for issuing harsher judgments against developing states than it does against the states of Western Europe. It has also been seen by some observers as issuing increasingly demanding judgments. This paper develops a theory of judicial decision-making that accounts for these trends. In order to obtain higher compliance rates with the decisions promoting its preferences, the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgments, and loses reputation every time a state fails to comply with its judgments. Not every act of compliance has the same effect on the reputation of the court, however. When the judgment is costlier, the court will gain more reputation in the case of compliance. In an effort to build its reputation, in some cases the court will issue the costliest decision with which it expects the state to comply. Since the ECHR receives high compliance rates, its reputation increases, which leads it to issue costlier decisions. The court restrains itself when facing high-reputation states that can severely damage its reputation by noncompliance or criticism, so it demands more from low-reputation states. Table of Contents I. Introduction 116 II. The ECHR 118 III. The Court's Strategy 119 IV. Facing the State's Strategy 132 V. Conclusion 141 I. INTRODUCTION In recent years, critics have accused the European Court of Human Rights (ECHR) of bias because it issues harsher judgments against developing states dian against the states of Western Europe. Critics have also observed that the ECHR issues increasingly demanding judgments, decisions that require states to take increasingly cosdy actions to comply with its dictates. This paper develops a theory of judicial decision-making accounting for these two trends. The ECHR does not have an effective mechanism to enforce its judgments. When states comply with its judgments, they do so not out of fear of pecuniary or injunctive sanctions, but rather because they fear the reputational loss ("reputational sanction") associated with noncompliance. The magnitude of this reputational sanction is, in turn, influenced by the reputation of the court. The higher the reputation of the court, the more all member states expect compliance with its judgments; hence, the greater the reputational sanction to noncompliant states. In order to obtain higher compliance rates with the decisions that enable it to promote its preferences,1 the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgment, since this act signals that the state foresees a high reputational sanction for noncompliance and reinforces the belief of member states that the court has a high reputation. Yet not every act of compliance has the same effect on the reputation of the court. When the judgment is costlier, the court is going to gain more reputation in cases of compliance, since a state would be expected to comply only when the reputational sanction is higher than the material cost of compliance. This Article posits that in some cases where the court has judicial discretion and its judges do not have other motivations, the court, in deciding how to act, will attempt to assess the costs to me state of various potential decisions. In an effort to build its reputation, it will opt to issue the costliest decision practicable (that is, a decision imposing the greatest cost that the party subject to the relevant judgment will accept). …