Comparative Law in the Practice of the European Court of Human Rights – Beyond the European Consensus

Besides being an international court, the European Court of Human Rights is commonly regarded as the constitutional court for Europe. It has applied the comparative method in its ‘European consensus’ analysis for a long time. This paper focuses on the practice of the Court citing foreign law: national legal documents from non-European jurisdictions. After giving a theoretical background, the central part of the paper presents the results of empirical research based on a double methodology: analysis of the case law from the last 20 years and expert interviews with former and current judges and law clerks of the Court. The paper aims to find patterns in the practice to understand the background, aims, and influencing factors of the use of comparative data. With these data, it is possible to determine whether the generally raised criticisms, namely cherry-picking and cultural bias, are present and whether they could be remedied using a carefully drafted methodology.