The European Court of Human Rights and national courts: how to reach understanding? A dialogue of judges Anatoly Kovler and Tamara Morshchakova

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Authors: Anatoly Kovler, Tamara Morshchakova

DOI: 10.21128/1812-7126-2016-2-171-181

Keywords: advisory opinions; dialogue of judges; European Court of Human Rights; national and international jurisdictions; principle of subsidiarity


This paper presents a conversation of prominent representatives of the judicial profession Anatoly Kovler and Tamara Morshchakova. Both interlocutors are experienced judges: Tamara Morshchakova – for years has taken the bench in the national Constitutional Court; Anatoly Kovler for more than a decade has been the member of the European Court of Human Rights. According to the common opinion of this magisterial duo, the best way to achieve understanding, harmonisation and balance of the positions on human rights between the European Court and national courts is a dialogue of judges. And this learned talk is quite a very good example of such a dialogue. The basis for a judicial dialogue rests in the equality of the subjects under an international convention, which, consequently, discuss legal problems as equal members of the international community. The key to achieving mutual understanding between the judges of supranational and national courts is a common and mutual desire and readiness to take into account the peculiarities and different ways of legal development of a states or legal systems participating in international communication. The possibilities for such understanding rest on the agreement on the methodology of studying the state of the national legal systems. Looking into the practice of interaction of supranational (like the European Court of Human Rights) and national courts goes along with reflections on appeal procedures and judicial review in Russia as an efficient tool for the protection of rights and effective legal remedy. Anatoly Kovler reflected on the prevailing predisposition of the European Court judges toward a constructive dialogue and opinion exchange. In the conclusion participants of the dialogue turn to the appropriateness and expediency for the national courts to resort to the advisory opinion from the European Court of Human Rights. Tamara Morshchakova addressed the issue of possibility of reciprocal exchanging opinion requests between the courts – in order to ensure uniform interpretation and enforcement of the provisions of the international treaty and of decisions of the supranational jurisdiction.

About the authors: Anatoly Kovler – Doctor of Sciences in Law, Professor of Constitutional and of Municipal Law at the Moscow State University, Professor of Judiciary Studies at the National Research University – Higher School of Economics, Judge of the European Court of Human Rights (1999–2012); Tamara Morshchakova – Doctor of Sciences in Law, Tenured Professor, Faculty of Law, National Research University – Higher School of Economics; Judge of the Russian Constitutional Court (1991–2002).

Citation: Evropeyskiy Sud i natsional'nye sudy: kak dostich vzaimoponimaniya?: Dialog Tamary Morshchakovoy i Anatoliya Kovlera [The European Court of Human Rights and National Courts: How to Reach Understanding?: A Dialogue of Judges Tamara Morshchakova and Anatoly Kovler] (2016). Sravnitel'noe konstitutsionnoe obozrenie, no. 2, pp. 171–181.