freedom of marriage, the right to live a normal family life, the principle of human dignity, rights of criminal defence, and media pluralism as an aspect of freedom of expression.140 More recently French domestic courts have adopted a more systematic practice of referring to the provisions of the ECHR as a matter of course.141 The higher courts have generally been slower to follow this trend than the courts of first and second instance.142 In contrast, however, some cases decided by higher courts demonstrate a desire to pre-empt condemnation by the ECtHR by taking a more progressive approach to interpreting ECHR protections. For example, in the Boussouar143 and Planchenault144 cases the Council of State allowed judicial review of administrative decisions for alleged violations of prisoners’ rights because ‘to refuse to overturn the impugned decisions would be tantamount to accepting to close your eyes until Strasbourg [ECtHR] opens them for you.’145 Following such an approach, domestic judges interpret the provisions of the ECHR independently, sometimes going beyond the requirements of the ECtHR, and in the absence of pre-existing jurisprudence, thus stimulating a dialogue with the ECtHR.146 This tactic, along with the 2008 constitutional amendment, may go some way in reducing the rate of condemnation of France by the ECtHR. The French courts have not expressly dealt with the issue of the reconciliation of the ECHR and ECtHR with legislative sovereignty, but there is evidence in the case-law and the 2008 amendment that the former are seen as a threat to the latter. The 1958 Constitution set up a strong separation of powers doctrine giving priority to the laws passed by the Parliament, seen as the expression of the will of the French people, who are the holders of national sovereignty.147 The absence of post-promulgation judicial review of legislation and the limited powers of seizure of the Constitutional Council are evidence of a reluctance to allow judges to interfere with democratic expression. This situation was altered by the 2008 constitutional amendment allowing individual citizens to bring cases before the Constitutional Council, but it is telling that postpromulgation review may be based only on the Constitution, and the Council continues to resist the elevation of the ECHR to a constitutional level. As noted, lower courts can refuse to apply domestic laws that conflict with the ECHR but they cannot strike them down. As the Constitutional Council refuses to declare laws that violate the ECHR as unconstitutional, the only power that can repeal such laws is the legislature. This, coupled with constitutional supremacy, favours national legislative sovereignty over the provisions of the ECHR. The reluctance of domestic courts to follow the jurisprudence of the ECtHR, unless France is directly implicated in a case, further demonstrates a will to assert national and legislative autonomy. French courts are now beginning to show signs of a more progressive approach to human rights, but this may simply be further evidence of an attempt to assert autonomy, and of the belief that the ECHR constitutes a minimum standard of rights which is surpassed by domestic provisions. We await future cases to see how the French courts
GL Neuman (n 130) 33. Abdelgawad and Weber (n 123) 139–140. 142 ibid. 143 Conseil d’État, December 14, 2007, Boussouar. 144 Conseil d’État, December 14, 2007, Planchenault. 145 Translated from: ‘Refuser de contrôler les décisions aujourd’hui attaquées reviendrait à accepter de fermer les yeux en attendant qu’on les ouvre pour vous à Strasbourg.’ M Guyomar, Conclusions sur Conseil d’Etat, Assemblée, 14 décembre 2007, M Planchenault (1reespèce), et Garde des sceaux, ministre de la Justice c/ M. Boussouar (2e espèce) [Conclusions of the Conseil d’Etat, Assembly, December 14, 2007, Planchenault (First Case), and Minister of Justice v Boussouar (Second Case)], Revue Française de Droit Administrative 87 (2008) 100. 146 E Abdelgawad and A Weber (n 123) 140. 147 Article 3 of the 1958 Constitution. 140 141
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