ABSTRACT
The purpose of the present paper is to briefly reassess the role of the ECtHR’s case law in its own case law and the approach developed in this respect by the Court. The Court systematically refers to the earlier case law and usually presents its judgments and decisions as a consequence of principles formulated in earlier case law. Following precedent is a matter of free choice of the Court, justified by two main considerations: 1) legal certainty and foreseeability and 2) equality before the law. Following precedents is the default rule, while departing from precedents is a permissible exception requiring a ‘good reason’. At the same time, the Court differentiates the precedential value of its judgments and decisions. Numerous judges feel bound to follow the Grand Chamber case law, even if they disagree with it, whereas others adopt the opposite viewpoint. Separate opinions usually focus on questions related to the correct identification and interpretation of the relevant case law. The Court develops its case law, usually without overtly departing from precedents. The developments often reflect societal change (under Article 8 of the ECHR), whereas the approach of the ECtHR seems more conservative in respect of more ‘technical’ legal issues.
