In March 2015 the Italian Constitutional Court judgment on the Varvara case, concluded that only consolidated law (diritto consolidato) of the Strasburg Court is binding in the domestic legal order. Although the notion of consolidated law is not clearly established, it includes at least Grand Chamber and pilot judgments and eventually committee judgments. Chamber judgments are binding only inter partes and have no other effect in similar cases sharing the same structural problems. In July 2015 the Russian Constitutional Court delivered a judgment on the Federal Law on the Accession of the Russian Federation to the ECHR, which affirmed that the judgments of the Strasbourg Court would not be enforceable if and when they contradict the Russian Constitution, according to its reading by the Russian Constitutional Court. This line of domestic case-law puts in question the legal force of the European Court's case law and of the European Convention itself. Other cases in UK and German jurisdictions raise similar concerns. The tense relationship between some Supreme and Constitutional Courts and the European Court raises the question of principle: What are the obligations of the Contracting Parties to the Convention to implement the European Court's judgments?
The European Convention on Human Rights provides for a system of protection of the "substance" of human rights of all individuals within the jurisdiction of the States Parties. Moreover, the Convention guarantees not rights that are theoretical or illusory but rights that are practical and effective. Being more than a multilateral agreement on reciprocal obligations of States Parties, the Convention creates obligations for States Parties towards all individuals within their jurisdiction, envisaging the practical implementation of the protected rights and freedoms in the domestic legal order of the States Parties. Therefore, the States Parties to the Convention are legally obliged not to hinder in any way the effective exercise of the right of individual application and to make such modifications in their domestic legal systems as may be necessary to ensure the full implementation of the obligations incumbent on them. Seen from another perspective, these are the consequences of the principle of good faith in fulfilling treaty obligations, foreseen in Articles 26 and 31 of the Vienna Convention on the Law of Treaties.
The most important instrumental obligation of States Parties to the Convention is the obligation to abide by the Court's judgments (Article 46 of the Convention). At first sight the Convention provides that the effects of the Court's judgments are restricted to the parties to the case, that is, the applicant or applicants and the respondent State or States. This first reading is misleading, however, and a correct construction of Article 46 requires it to be read jointly with Article 1. In the light of these provisions read together, the Court's judgments have a direct and erga omnes effect. Only be ensuring this effect, we will be in a position to overcome the present crisis of the European system of human rights protection.
Judge Paulo Pinto de Albuquerque, European Court of Human Rights