Rethinking Adjudication under the European Convention

This chapter comments on the Lautsi judgements as a prelude to the core problem the case reveals. In the author views, the Lautsi case demonstrate that it is time for the Court to develop a new mode of adjudication-a form of review which makes it possible to act as a countermajoritarian institution and set a European standard, without infringing state sovereignty. The Chamber’s decision will be analyzed and the tournure of the Grand Chamber of the ECtHR in its reference to the margin of appreciation-a doctrine which masks the real basis for its decision. The position of rights under the convention is assessed. The chapter deals with the position of the ECtHR and the question whether the Court can truly be considered a countermajoritarian institution. It also assesses the different modes of judicial review and proposes a new mode of adjudication.