Publication details
Preaching Consistency, Drinking Inconsistency
| Authors | |
|---|---|
| Year of publication | 2026 |
| Type | Peer-reviewed scientific article |
| Magazine / Source | European Constitutional Law Review |
| MU Faculty or unit | |
| Citation | |
| web | https://api.elsevier.com/content/abstract/scopus_id/105040197748 |
| Doi | https://doi.org/10.1017/S1574019626101047 |
| Keywords | consistency; ECtHR; Constitutional Court; caselaw; grand chamber; fair trial; Úmluva; divergences |
| Attached files | |
| Description | This case note argues that the judgment in Suverénní Řád Maltézských Rytířů marks a significant and problematic shift in the European Court of Human Rights’ approach to inconsistent domestic case law. What initially appeared to be a technical dispute ultimately raises broader systemic concerns about the relationship between individual justice, legal certainty, and the autonomy of national apex courts. The note shows that the Court departed from its previous Grand Chamber case law, under which inconsistency amounts to a violation of Article 6 only where profound and long-standing divergences exist and where mechanisms for resolving them are absent, ineffective, or improperly applied. In contrast, the Court in the present case found a violation without properly applying these established criteria, despite acknowledging that the relevant domestic case law was newly established. The note situates this development within the broader institutional context of specialised constitutional courts, whose ability to regulate their docket may be undermined by overly strict requirements to justify deviations from previous decisions. It does not deny that consistency in case law is important, nor that inconsistency may, in certain circumstances, breach legal certainty under Article 6. Rather, it argues that such a finding must depend on the quality and significance of the inconsistency identified. By reducing its reasoning to the equation that insufficiently explained inconsistency equals a Convention violation, the Court risks weakening subsidiarity and encouraging claims to a de facto right to a grand chamber at the domestic level. Paradoxically, the judgment condemns inconsistency by producing uncertainty of its own. |