Contents - Constitutional Court of Georgia

42
Françoise Tulkens
It is worth noting that in the course of these leading judgments the Court often refers to
the case-law from other national and international jurisdictions. Recourse to a comparative
perspective in human rights adjudication does not give rise to controversy before the
European Court of Human Rights 134 . It is something that is taken for granted. The Court
considers that there is every reason to study decisions in other jurisdictions dealing with
similar issues. It recognises that while it is not in any sense bound by what national or other
international courts say the Court’s own understanding of the governing principles will inevitably
be enriched by examining how other courts have approached the same question.
With modern advances in technology it is no longer difficult to have immediate access to
leading decisions from, for example, the Supreme Courts of The United Kingdom, Canada
and the United States and the Constitutional Court of South Africa.
Moreover, we should not neglect the contribution to the development and application of
these standards of other Council of Europe human rights bodies, in particular, the work of
the Commission for the Prevention of Torture (CPT), the Commissioner for Human Rights,
the European Committee of Social Rights, the European Commission against Racism and Intolerance
(ECRI) and the Advisory Committee for the Protection of National Minorities under
the Framework Convention. These bodies will often rely on the case-law of the Court in their
work but it also works the other way around. For example, today, it is quite a common occurrence
for the Court to rely heavily on the work of the CPT in judging whether prison conditions
amount to inhuman and degrading treatment in particular cases 135 . Reference has also
been made to ECRI reports 136 and to reports prepared under the European Social Charter 137 .
5. THE REFORM
Since 1990 the enlargement of the Council of Europe has created a new dimension for
the operation of the Convention system. While the underlying purpose of the system remained
the same, the Court now had a further role to play in the consolidation of democracy
and the rule of law in the wider Europe. This is a process which continues today. In
this sense its significance has arguably never been greater. The Court, through its case-law
134 See, for example, the references to Canadian and United States judgments in ECtHR (GC), Hirst (no. 2) v. the United Kingdom, judgment
of 6 October 2005; ECtHR, Appleby v. the United Kingdom, judgment of 6 May 2003; ECtHR, Allan v. the United Kingdom, judgment
of 5 November 2002. The issue has become a controversial one in the United States – see Justice Ruth Bader Ginsburg’s remarks to the
Constitutional Court of South Africa – “A decent respect to the Opinions of [human]kind” (7 February 2006).
135 Amongst numerous cases see ECrtHR, Van der Ven v. the Netherlands, judgment of 4 February 2003.
136 See ECtHR (GC), Nachova and Others v. Bulgaria judgment of 6 July 2005 (reference to ECRI’s 2000 and 2004 reports on Bulgaria).
137 See ECtHR (GC), Sørensen and Rasmussen v. Denmark judgment of 11 January 2006 (reference to reports of the European Social Com-
mittee).