1. PREMISE

The European Court of Human Rights (ECtHR) has always referred to the European Convention on Human Rights (ECHR) as a living instrument which must be interpreted in light of present-day conditions. According to the evolutive doctrine adopted by the Court, national judges, who are clearly closer to the needs of citizens, and the facts of cases dealing with national law, make a major contribution to the implementation of the Convention. In fact, national courts are European human rights judges in their respective countries, and ‘are best placed to act as ambassadors of the Court’s case law in the Contracting States’.

The role of national judges is not a passive one. They are not the mere recipients of the Strasbourg Court’s interpretation; rather, they have an active role, based on a critical function that is exercised, on the one hand, by conformity with the ECtHR case law and, on the other, by the identification of national peculiarities under the doctrine of the margin of appreciation. Thus, national judges are identified, in the research, as the key actors for a point of equilibrium between the international and national dimensions of human rights, which constitutes the principal engine of the formation of human rights law. This process is described through expressions which have, today, entered the vocabulary of legal scholars, such as ‘dialogue’ among the courts, and ‘shared responsibility’ (of international and national judges) for the effective implementation of Convention rights.

The relationship between the ECtHR and the national courts is shaped by the principle of subsidiarity that permeates the whole system of the Convention, although this principle was not expressly mentioned in the 1950 text.

The principle of subsidiarity has two different senses: the first is a procedural meaning, and concerns the rule of the exhaustion of domestic remedies; the second sense is a substantive one, implying that it is the task of national courts to interpret domestic law, ensuring the rights and liberties provided by the Convention.

The recent entry into force of Protocol 15 to the Convention highlights the centrality of the principle of subsidiarity in the European Convention system.