In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.
Since Protocol 11 to the ECHR entered into force in 1998, when hearing judgments on the merits the Strasbourg Court sits in Chambers and Grand Chambers. The great majority of judgments are delivered by Chambers of seven judges. The Grand Chamber consists of seventeen Judges; it delivered eighteen judgments in 2010.
The ECHR text (Article 30) provides that a Chamber may relinquish jurisdiction over a case to a Grand Chamber when it:
raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court.
Clearly this allows the more important issues of Convention law to be referred up to the more authoritative, and larger, Grand Chamber. Twelve cases were relinquished in 2010.
The Grand Chamber may also rehear a case on which a Chamber has already delivered a ruling. Within three months of the Chamber ruling either party to the case may:
in exceptional cases, request that the case be referred to the Grand Chamber’ (Article 43(1)).
A panel of five judges of the Grand Chamber will:
accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance (Article 43(2)).
The panel is composed of the President of the Court, two Presidents of Sections designated by rotation, and two other judges designated by rotation (Court’s Rules: Rules 24(5)). The Rules of the Court state it is not obliged to give reasons for its refusal to accept a referral (Rule 73(2)). The Court’s monthly Information Notes reveal that many cases are referred to the panel but that only a small percentage are accepted (only twelve were in 2010). The Court’s website lists of all cases currently pending before the Grand Chamber (relinquishments and successful referrals).
A recent, and highly publicised, example of a ‘reversal’ of a Chamber judgment by the Grand Chamber was ‘the Italian crucifix case’ (Lautsi v Italy – see this post), in which no violation of the Convention was found. This case might be an example of why, when Protocol 11 was negotiated, a number of States, including the United Kingdom, regarded the possibility of a rehearing as important. It could act as a check against extravagancies on the part of a Chamber and would allow a State to argue why it regarded the earlier judgment as unsatisfactory and inappropriate.
What then of the recent refusal of the panel of the Grand Chamber to accept the referral of the Greens and MT case (a Chamber judgment from November last year)? Reading the United Kingdom’s referral documentation it makes a persuasive case that what was in issue was ‘a serious issue of general importance’ under Article 43(2). Why then was the case not accepted for re-examination? As has been pointed out, the panel does not have to give reasons for refusal, and it did not here, so we are left to speculate as to what its thinking was. A possible explanation follows.
Hirst v United Kingdom (No2), the ‘original’ prisoner voting case from 2005, was ruled upon first by a Chamber, and then successfully referred to the Grand Chamber, by the United Kingdom, using the procedures described above. Both judgments went against the United Kingdom. Article 44(1) ECHR states that the ‘judgment of the Grand Chamber shall be final’
As Adam Wagner pointed out in his earlier post, it is clear from the United Kingdom government’s request for a rehearing of Greens that it was really seeking to have the Hirst judgment of 2005 overturned on the basis that it was wrong and went too far (it being noted the Chamber in Greens was bound by the Grand Chamber ruling in Hirst). He correctly predicted that the Court would not accept this.
Was the United Kingdom using the Article 43(1) referral procedure for a purpose that it was not intended to serve? The purpose of Article 43(1), to adopt the language of the Explanatory Report to Protocol 11 (the non-binding, yet official document explaining how Protocol 11 was formulated, and expected to operate), ‘is to ensure the quality and consistency of the Court’s case-law by allowing for a re-examination of the most important cases’ (para 47), if the aforementioned ‘serious question/ issue’ (Article 43(2)) conditions are met.
Yet it would seem that the possibility of re-examination only applies to Chamber cases in which the law has not already been settled by the Grand Chamber. We may never know, but the refusal to accept the referral of Greens may well have been because the United Kingdom was using Article 43 inappropriately, i.e. as a vehicle to challenge an earlier Grand Chamber ruling?
But if this is so, and to be clear we do not know if it is, does it not prompt further questions? Can Article 43 never be used to request a reconsideration of an earlier Grand Chamber ruling? If so, how, if at all, may an earlier Grand Chamber ruling be reviewed at Strasbourg if a State or States insist that it goes too far, or subsequent developments throw the original ruling into doubt?
Dr Ed Bates, Senior Lecturer in Law, University of Southampton. Author of ‘The Evolution of the European Convention on Human Rights’, Oxford University Press, 2010.
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