This post is adapted from a speech given by Judge Robert Spano of the European Court of Human Rights at Chatham House on 13 October 2014. It is reproduced here with permission and thanks.
There is currently a vigorous debate in the UK on the status and future of the European Convention on Human Rights in national law and also on the relationship between my Court, the Strasbourg Court (ECtHR), the UK Parliament and the domestic judiciary. In principle, democratic debates on such fundamental issues should always be welcome. Indeed, discussions on the role and functions of institutions of public power lie at the core of the democratic concept. It is therefore essential for the Court and its judges to engage in reasoned and informed debate about their work and its wider European implications.
How Does the ECtHR Discharge Its Mandate?
I have been asked to discuss the question of how the Strasbourg Court discharges its mandate. To give an answer, one must first respond to the fundamental question: What is the Court‘s mandate?
The answer to that question derives explicitly from Article 19 of the Convention, which states, and I quote, as relevant: ‘To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols thereto, there shall be set up a European Court of Human Rights …’ The Court thus resolves disputes brought by individuals or other Member States on whether a particular Contracting State has, for the purposes of the Convention as an international treaty, acted, or omitted to act, in accordance with the fundamental rights enshrined in the Convention and its protocols.
It is important to emphasise that the Court‘s judgments are, under Article 46 of the Convention, only legally binding on the Member States under international law in cases where they are a party. Therefore, there is no obligation under the Convention to make the Court‘s judgments formally binding as a matter of domestic law. However, if the Member State does not execute the judgment in question it has not, under international law, observed its engagements, to use the language of Article 19 of the Convention, that the State has undertaken on the basis of its own conscious choice as a sovereign and independent power, thus accepting the importance of the collective guarantee of human rights that lies at the core of the Convention, acknowledging that the protection of human rights is not purely a matter of domestic concern. Thus, whether or not the State, under domestic law, provides for the formally binding nature of the Court‘s judgments is, in this sense, immaterial for the scope and content of its obligations under the Convention.
Although not wanting as a judge of the Strasbourg Court to enter into the fray of party-political debate, I must say, that viewing some of the debates in this country of late, it is therefore somewhat perplexing to note that some consider it necessary to break the formal link between the British Courts and the Strasbourg Court and to end the ability of my Court to force the UK to change the law. Thus it is proposed that a judgment of the Strasbourg Court will only be binding in UK law if Parliament agrees that it should be enacted as such. Frankly, I wasn‘t aware that as things stand already, a formal link existed between the Strasbourg Court and the British Courts or that a judgment, given by the my Court, could have the effect of laws being changed in the UK without Parliamentary action.
In the discharge of its mandate, the Court is usually confronted with interpreting flexibly worded fundamental principles of human rights. The drafters of the Convention consciously decided to not formulate the provisions in a casuistic, detailed manner. For example, the resolution of the question of which aspects of one‘s ‘private and family life’ fall within the scope of Article 8 is not found in ‘Aladdin‘s cave’, using Lord Reid‘s famous metaphor from 1971 describing the judge‘s law making power. The scope of a Convention provision, as far as its flexible wording allows, must thus be determined on the basis of an evaluation of the underlying principles in the provision in question in light of a concrete case. To this effect, the Strasbourg Court has, at least since 1978, used the much discussed, and often criticised, in ing instrument doctrine.
It is often argued that the living instrument doctrine contradicts the expected applications of the Convention as envisaged by the founders. In my view, this argument is misguided. The conceptual premise of the ‘living instrument doctrine’ is based on the understanding that the text actually reflects the original intention of the founders of the Convention that national courts and, if need be, the Strasbourg Court should interpret and apply the Convention in the light of present day conditions. It is therefore inaccurate to conclude that the living instrument doctrine is in itself a methodological principle that flatly contradicts the original intentions of the drafters. On the contrary, the use of such a principle is inherent in the way they decided to formulate the text of the Convention, subsequently accepted and adopted by the Member States. As all of you know, this principle was first espoused by the Old Court in the famous case of Tyrer v the United Kingdom of 1978. In this respect, it is interesting to anecdotally note that the judgment, introducing the living instrument approach, was given by a chamber which included one of the pre-eminent drafters of the Convention, Pierre-Henri Teitgen.
But along with the discretionary powers afforded to the Strasbourg judges under the living instrument doctrine, it has long been recognised that the European human rights system must include counterbalancing mechanisms so as to preserve the core of the prerogatives retained by the domestic authorities. Therefore, in the discharge of its functions, the Court applies what it has termed a margin of appreciation in the examination of the level of deference to be afforded to the national assessment of the human rights problem implicated in a given case. This is not a novel phenomenon, the Strasbourg Court has been doing this since at least the famous Handyside judgment of the Old Court from 1976.
In the discharge of these functions, the Court applies the margin of appreciation as the functional manifestation of the principle of subsidiarity, the doctrine in other words the operational tool for the realisation of the subsidiary character of the Convention system. From the perspective of the Strasbourg Court, as an international body, this must mean that if national authorities have taken the general principles of our case-law into account in their domestic assessment, the application of those principles to the facts of the case falls, in principle, within the core of their margin of appreciation, not to be touched by my Court. This applies, in principle, in all cases where limitations on rights are possible under the Convention, whether explicitly or implicitly.
However, this entails, at the same time, that the quality of domestic assessment by all branches of government is crucial. The recent Grand Chamber judgment in Animal Defenders International v the UK, as well as others, for example two recent Fourth Section judgments in MGN Limited v. the UK and RMT v the UK, the latter upholding the general ban in this country on secondary strike action, stand for the important proposition that when examining whether and to what extent the Court should grant a Member State a margin of appreciation the quality of decision-making, both at the legislative stage and before the courts, is crucial and may ultimately be decisive in borderline cases.
In sum, and this is the most important point, in the discharge of his mandate, it is not the role of the Strasbourg judge to second-guess the reasoned assessment of the national judge on the eventual outcome of a case, dealing with Convention rights that allow for restrictions based on proportionality, so long as the national judge has faithfully applied the general principles of the case-law of the Court to the facts of the case in accordance with the constitutional traditions in his country. I submit that if one carefully analyses recent cases of the Strasbourg Court, for example in Animal Defenders and SAS v. France, the so- called Burqa case, one might see a trend towards a more foreseeable and rational application of the margin of appreciation in line with a more robust concept of subsidiarity inspired by the Brighton Declaration of 2012, adopted under the UK Presidency in the Council of Europe, especially where difficult areas of economic and social policy are concerned. To be more precise, this case law has three elements. Firstly, with what may be termed the democratic element, the Court acknowledges that national authorities have “direct democratic legitimation”. 2 For a more fully developed analysis of this point, see Robert Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiary.
Secondly, the element of domestic expertise and knowledge recognises that the national authorities are “better placed than an international court to evaluate local needs and conditions”. And thirdly, the policy element, manifested in the role of the domestic policy-maker which the Strasbourg Court gives special weight.
What Lies Behind the ECtHR Reform Process?
Let me now very briefly turn to the second part of the topic I was asked to prepare, the question of what lies behind the reform process that the Court is now engaged in on the basis of the Brighton Declaration.
There are three elements to the reform process. Firstly, it deals with enhancing the quality of the Court‘s work, secondly, with issues relating to consistency in the case-law, and thirdly, with output and caseload.
Let me first say a few words about issues of output and caseload. I am sure everybody present is aware of the enormous progress that the Court has made in this area since Protocol 14 came into force in 2010, where the total number of pending cases has dropped from approx. 160.000 cases in 2011 to a total of 84.515 cases as of July 2014. However, problems remain and the Court and its Registry, in cooperation with the responsible organs of the Council of Europe, are working tirelessly at devising proper solutions to these problems. As far as the UK is concerned, the figures, taking into account the period from when the new Permanent Court was established in 1998 as of 17 September 2014 are as follows: A total of 15.975 cases have been dealt with by a judicial formation. Of these, 97,5%, or 15.571 cases were declared inadmissible or struck out, a further 158 cases, or 1.0%, are in the form of judgments finding no violation of the Convention, this leaving, for a period of 16 years, a total of 246 cases, or 1,5% of the total number of applications, where the Court has found a violation.
As regards consistency in the Court case-law, the Court‘s internal processes are constantly being developed to better cope with the realities of having 47 judges decide thousands of cases across five different Sections. In this regard, the Court is mindful of the future possible accession of the European Union to the Convention system which is designed to fill the peculiar anomaly of the divergent human rights protections now being provided within the 28 Member State EU, on the one hand, and, on the other, the larger 47 Member State legal space of the Council of Europe.
Lastly, as regards the quality of our case-law, you will be aware of the changes that have been made over the past few years as regards the election of judges to the Court towards a more rigorous process of scrutiny by the Parliamentary Assembly of the Council of Europe of lists of nominees submitted by Governments where lists have recently been repeatedly rejected. This gives me the opportunity to correct an often mistaken view, expressed in this country, that the Strasbourg judges are unelected, to the contrary they are elected by a cross- section of European Parliamentarians sitting in the Council of Europe, among them UK Members of Parliament.
The Importance of an Informed Debate on the Work of the ECtHR
In conclusion, allow me to say a few words on the importance of an informed debate on the work of the Convention system.
I stress that democratic debates on fundamental issues of human rights protection are always necessary. No one can legitimately claim that criticism directed at the Strasbourg Court is in all respects without foundation, of course not. The Court is however a very complex institution entrusted with an exceedingly difficult role of resolving cases of alleged human rights violations by 47 Member States, brought by individuals from all over the continent. One should therefore be cautious when expressing a generalised and abstract viewpoint on the Court. Such an approach necessitates, at least, careful analysis of and reflection on the case law.
Therefore, it is important to recognise that democratic debates on these issues must, to be useful and productive, be based on the correct representation of the underlying facts and realities. The correct characterisation of the findings of the Strasbourg Court in individual cases is for example crucial for the correct factual assessment on whether a problem exist. It is self-evident that one does not successfully propose solutions to a problem if one misunderstands some of the basic elements of the problem being addressed!
Robert Spano is a Judge of the European Court of Human Rights